THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


A  TREATISE 


ON 


THE    RULES 


FOR  THE  SELECTION  OF  THE 


PARTIES  TO  AN  ACTION 


BY 

A.  V.  DICEY,  Esq., 

OP  THK  INNEK  TEMPLE,  BABEISTER-AT-ULW. 


SECOND    AMERICAN    EDITION. 

BY 

W.   ALDRICH. 


JERSEY    CITY: 

FREDERICK    D.    LINN    &    CO^ 

1886. 


T 


Copyright,  1886, 

by 

FREDERICK  D.  LINN  <Sc  CO. 


PREKACK 


TO    THE 


SECOND   AMERICAN   EDITION. 


During  the  ten  years  that  have  elapsed  since  the 
appearance  of  the  previous  American  edition  of  this 
work,  many  cases  have  been  adjudicated  in  which 
the  principles  and  rules  governing  parties  to  acdons 
have  received  application.  In  the  present  edidon  the 
editor  has  embodied  such  of  the  American  decisions 
as  seemed  to  him  important. 

New  York.  June  26th,  1886. 


729<;08 


PREFACE 


TO    THE     ENGLISH     EDITION 


The  aim  of  this  treatise  is  to  reduce  or  digest  the 
law  of  parties  into  a  series  of  rules,  each  of  which  is 
illustrated  and  explained  by  appropriate  cases  and 
examples,  and  confirmed,  wherever  this  is  possible,  by 
quotations  from  judgments,  or  from  the  pages  of 
writers  of  acknowledged  reputation.  In  the  explana- 
tory portions  of  the  text  will  be  found,  it  is  hoped,  all 
the  most  important  decisions  or  enactments  bearing 
on  each  point  under  consideration ;  so  that  any  person 
who  wishes  not  only  for  a  rule  but  also  for  an  account 
of  the  cases  or  statutes  on  which  it  rests,  may  obtain 
the  information  which  he  requires;  and  care  has  been 
taken  to  employ,  even  at  the  cost  of  some  circumlo- 
cution or  occasional  awkwardness  of  expression,  the 
ipsissima  verba  either  of  Judges  or  of  eminent 
writers,  so  that  the  statements  made  may  carry  a 
weight  which  can  not  attach  to  a  summary  of  the  law 
given  in  the  words  of  an  unknown  author. 

The  labors   of   Mr.  Chitty,  Mr.   Broom,  and  Mr 


vi  PREFACE. 

Justice  Lush,  have,  it  is  scarcely  necessary  to  say, 
geatly  facilitated  the  production  of  this  work,  but 
have,  it  is  hoped,  not  necessarily  rendered  it  either 
useless  or  superfluous;  inasmuch  as  all  of  these  dis- 
tinguished authors  aimed  rather  at  stating  the  law  ot 
parties  than  at  reducing  it  to  a  systematic  form  ; 
whilst  both  Mr.  Chitty  and  Mr.  Justice  Lush  were 
compelled  from  the  scheme  of  their  works  to  treat 
this  branch  of  the  law  a3  merely  subsidiary  to  the  law 
of  "practice,"  and  were  therefore  precluded  from  its 
full  and  systematic  treatment. 

The  practical  advantage  of  the  arrangement  pur- 
sued in  this  treatise  is,  that  it  enables  the  reader  to 
see  at  a  glance  what  the  rule  of  law  is ;  whilst  it  frees 
him  from  the  necessity  of  collecting  the  principle  for 
which  he  is  in  search  from  the  decisions  or  statutes  in 
which  it  is  embodied ;  and  that  it  further  puts  it  in 
his  power  to  refer  with  great  readiness  to  the  part  of 
the  subject  on  which  he  may  desire  to  be  informed. 
An  advantage  of  a  more  speculative  nature  is  that 
this  arrangement  exhibits  the  law  of  parties  as  a  whole, 
and  by  showing  the  relations  between  its  different 
parts,  makes,  it  is  hoped,  apparent  the  fact  that  this 
somewhat  complicated  and  intricate  branch  of  the 
law,  depends  upon  and  is  the  expression  of  a  few 
simple  principles.* 

Some  persons  may  think,  and  not  unreasonably, 
that  the  present  time  is  inopportune  for  a  systematic 
consideration  of  the  law  of  parties,  inasmuch  as  the 

*  See  chapter  III.,  marg.  pp.  28-77 


PREFACE.  vii 

fusion  of  common  law  and  of  equity,  which  can  not 
be  much  longer  delayed,  will  assimilate  the  maxims 
of  common  law  to  those  which  govern  proceedings  in 
courts  of  chancery,  and  will  therefore  tend  to  the 
modification  or  repeal  of  many  among  the  more  tech- 
nical precepts  embodied  in  this  treatise ;  yet  this 
period  of  approaching  change  affords  in  reality,  it  is 
submitted,  an  appropriate  time  for  an  examination 
into  the  rules  which  regulate  an  action  at  law.  A 
fusion  of  law  and  equity,  while  it  must  end  by  mod- 
ifying two  different  systems  of  procedure,  will  bring 
into  great  prominence  the  rules  which  govern  the 
choice  of  plaintiffs  and  of  defendants.  A  conjecture 
may  indeed  be  hazarded,  that  a  vast  number  of  the 
rules  of  common  law  will,  as  being  founded  on  the 
dictates  of  justice  and  of  common  sense,  survive  under 
slightly  different  shapes,  in  the  law  which  will  be 
administered  by  the  proposed  High  Court.  But 
whether  this  anticipation  prove  correct  or  not,  it  is 
certain  that  whenever  a  court  is  founded  which  shall 
be  at  once  a  court  of  common  law  and  of  equity,  a 
knowledge  of  the  rules  which  now  regulate  the  choice 
of  parties  in  an  action,  and  of  the  principles  on  which 
they  depend,  will  for  the  purpose  of  dealing  with  the 
many  questions  which  must  arise  in  the  course  of  the 
revolutions  in  our  legal  system,  become  of  the  highest 
importance,  no  less  to  the  practical  than  to  the  spec- 
ulative lawyer.  If  versed  only  in  the  proceedings  at 
common  law  he  will  need  clearly  to  seize  the  princi- 
ples on  which  such   proceedings  rest,  in  order  that  he 


viii  PREFACE- 

may  understand  how  far  and  in  what  direction  they 
are  modified  by  the  rules  of  courts  of  equity.  If,  on 
the  other  hand,  he  is  practically  acquainted  only  with 
proceedings  in  Chancery,  he  will  require  to  grasp  the 
bearing  and  nature  of  technical  rules  of  which  he 
has  hitherto  had  no  experience.  If  the  present  trea- 
tise shall  in  any  measure  facilitate  the  comprehension 
of  the  principles  on  which  the  law  of  parties  rests,  it 
will  have  attained  its  object,  and,  it  is  hoped,  have 
justified  its  publication  at  the  present  time. 

A.  V.  D. 


TABLE    OF    CONTENTS. 


[references  are  to  the  marginal  paging.] 


RULES   COMMON  TO  ALL   ACTIONS. 


f. — The  person  who  can  sue  and  be 

sued >  >~  5 

II. — The  Division  of  Actions      .        .         —  6-27 

III. — General  Rules  applicable  to  all 

actions 2-9  28-77 


RULES   IN    ACTIONS   ON    CONTRACT. 


PLAINTIFFS. 


IV.— General  Rules     . 

V. — Principal  and  Agents. 
VI. — Partners 
VII. — Corporations 
VIII.— Husband  and  Wife 
IX. — Bankrupt  and  Trustee 
X — Executors  and  Administrators 


10-16 
17-19 

20-24 
25-28 

29-33 
34-40 
41-45 


78-T  29 
130-147 
148-162 
163-170 
171-188 
189-204 
205-22? 


CONTENTS. 


[References  art 


DEFENDANTS. 

CNAPTBR 

XL. — General  Rules     . 
XII. — Principal  and  Agent 
XIII. — Partners 
XIV. — Corporations 
XV.— Infants 
XVI.— Husband  and  Wife 
XVII. — Bankrupt  and  Trustee 
XVIII. — Executors  and  Administrators 


RULES 

PAGES 

46-52 

223-238 

53-54 

239-265 

55-58 

266-275 

f9-62 

276-283 

63-65 

2S3-295 

66-69 

296-305 

70-72 

306-312 

43-77 

313-324 

RULES  IN  ACTIONS  FOR  TORT. 


PLAINTIFFS. 


XIX. — General  Rules    . 
XX. — Principal  and  Agent  . 
XXL— Partners 
XXII.— Husband  and  Wife     . 
XXIII. — Bankrupt  and  Trustee 
XXIV. — Executors  and  Administrators 


78-82 

83 
84-85 
86-88 
89-91 
92-95 


325-382 

383 

384-388 

389-394 
395-401 
402-40^ 


DEFENDANTS. 


XXV.— General  Rules    . 

XXVI. — Principal  and  Agent 
XXVII.— Partners       . 
XXVIII. — Corporations 

XXIX. — Infants 


96-100  410-440 

loi— 103  441—467 

104  468-469 

105  470-473 

106  474-475 


to  marginal pagingi\                    ^  Uly  1  £Ll\  1 0.  X l 

CHAFTBR  RULES  FAOKS 

XXX. — Husband  and  wife       .         .         .  107  476-479 

XXXI. — Bankrupt  and  Trustee         .         .  108  480 

XXXII. — Executors  and  Administrators  .  109  481-483 

EJECTMENT. 

XXXIII — Ejectment 110-113  484-498 


EFFECT   OF    ERRORS. 

XXXIV. — Non-joinder,    Mis-joinder,     and 

Amendment      ....   11 4-1 18     499-509 


PARTIES    TO    ACTIONS. 

CHAPTER    I. 

THE    PERSONS    WHO    CAN    SUE    AND    BE    SUED. 

Rule  i. — All  persons  can  sue  and  are  liable  to  be 
sued  in  an  action  at  law. 

The  general  principle  of  law  is,  that  "as  the  law 
grants  redress  for  all  injuries,  and  gives  a  remedy  for 
every  kind  of  right,  so  it  is  open  to  all  kinds  of  persons, 
and  none  are  excluded  from  bringing  an  action."  {a) 

Hence,  subject  to  the  exceptions  afterwards  men- 
tioned, {d)  persons  of  all  descriptions,  of  whatever  rank, 
condition,  age,  or  country,  are  able  to  sue,  and  are  liable 
to  be  sued. 

The  sovereign  can  sue  as  a  common  person  in  respect 
of  causes  of  action  accruing  to  him  in  his  individual 
character ;  {c)  the  Queen  Consort  can  bring  or  defend  an 
action  as  a  feme  sole,  {d)  ' 

(a)  Bac.  Abr.,  Action,  B. 

(3)  Each  rule  is  laid  down  in  the  form  of  an  absolute  statement,  but  must 
be  understood  as  subject  to  the  exceptions  afterwards  enumerated  ;  the  scheme 
of  this  treatise  being  to  lay  down  in  each  case,  first  the  general  rule,  and  then 
the  exceptions  to  it.  The  rules  are  for  the  sake  of  easy  reference  numbered 
consecutively,  without  any  regard  to  their  comparative  importance. 

(c)  Com.  Dig.,  Action.  B.  i. 

(</)  Com.  Dig.,  Action,  B.  2 ;  Coke,  Lit.,  33  a. 

1.  King  of  Prussia  v.  Keupper,    ereign  or  government  has  been  ac- 
22   Mo.  557.     But  only  if  the  sov-    knowledged    by   our   government. 
1 


2         .  PARTIRS     TO    ACTIONS. 

A  foreign  sovereign  is  entitled  to  sue  \n  our  courts 
[2]  for  breaches  of  contract,  {c)  or  for  wrongs  done  to 
him  by  English  subjects,  without  authority  from  the 
English  Government,  in  respect  of  property  belonging  to 
him  either  in  his  individual  or  in  his  corporate  capacity  ; 
but  he  can  not  maintain  a  suit  here  for  invasions  of  his 
prerogative  rights  as  reigning  sovereign.  (/)  Corpora- 
tions, married  women,  infants,  idiots,  lunatics,  and  aliens, 
can  sue  and  be  sued.' 

Exception  i. — Felons,  outlaws,  and  alien  enemies  can  not  sue. 

A  person  convicted  of  felony  becomes  incapable  of 
suing  at  law  or  in  equity,  and  remains  under  this  disabil- 
ity until  either  he  has  obtained  a  pardon  or  his  term  ol 
punishment  has  expired,  {g)"" 

A  felon  (unless  he  receives  a  free  pardon  containing 
words  of  restitution)  can  not,  generally,  on  his  disability 
being   removed,   sue   for   causes   of  action    which   have 

(<?)  Emperor  of  Brazil  v.  Robinson,  6  A.  &  E.  8oi. 

(/)  Emperor  of  Austria  v.  Day,  30  L.  J.  690,  Ch.  ;  3  De  Gex,  F.  &-  J.  217  ; 
Mostyn  v.  Fabrigas,  v.  Smith,  L.  C,  6th  ed.,  663. 

(g)  Whitaker  v.  Wisbey,  12  C.  B.  44  ;  21  L.  J.  116,  C.  P.  ;  Bullock  v. 
Dodds,  2  B.  &  Aid.  258  ;  Coke,  Litt.,  390  b  ;  Addison,  Contracts,  6th  ed.. 
1023.  By  a  conviction  of  felony  the  goods  and  chattels  of  the  felon  are  imme- 
diately forfeited  to  the  Crown  ;  by  attainder  which  follows  on  judgment  given, 
his  lands  and  tenements  are  forfeited.     Bullen,  Pleadings,  3rd  ed.,  556 

Republic  of  Mexico  v.  De  Arangoiz,  contract,  when  not  living  with  their 

5  Duer,  634.  tribes.     Stokes  v.  Rodman,  5  R.  I. 

When  the  property  of  a  foreign  405  ;  but  not  otherwise.     Rollins  v. 

government  is  vested  in  its  ambas-  Cherokee  Indians,  87  N.  C.  229. 

sador  for  the  time  being,  he  may  2.  In  the  United   States  there  is 

sue  for  it  in  his  own  name.    Peel  v.  no  general  forfeiture  of  property  or 

Elliott,  7  Abb.  Pr.  437  ;  Newman  v.  the  right  to  maintain  an  action  on 

Wilson,  I  La.  Ann.  48.  a  conviction  lor  treason  or  felony, 

I.  Indiansmay  sue  each  other,  in  and    the    maxim    or    principle    of 

partition.     Swartzel    v.    Rogers,    3  civilly    dead    cannot    apply    even 

Kan.    377  ;    for    tort,   unless    disa-  when  the  convict  is  a  party  plain- 

bility  pleaded  in  abatement  before  tiff.     Cannon  v.  Windsor,  i  Houst. 

answer.     Jaha  v.  Belleg.  105  Mass.  144;  Platner  v.  Sherwood,  6  Johns. 

211.    And  they  may   be  sued  on  Ch.  118.     By  statute  in  New  York, 


WHO     CAN    SUE    AND    BE     SUED.  ^ 

accrued,  or  which  depend  upon  contracts  made  with  him 
at  any  time  before  such  removal. 

But  though  this  is  true  as  a  general  rule,  a  person 
convicted  of  felony  may,  on  his  capacity  to  sue  being  re- 
stored, in  some  cases  sue  on  contracts  made  with  him,  or 
for  wrongs  done  to  him  before  his  disability  ceased. 

Inasmuch  as  his  freehold  land  is  not  transferred  to  the 
Crown  until  office  found,  [h)  he  may  sue,  unless  the 
Crown  interfere  to  prevent  him,  on  contracts  (<?.  g.,  for 
the  payment  of  rent,  or  to  repair)  connected  with  his  free- 
hold property,  and  may  bring  ejectment,  even  though 
attainted  of  felony,  when  there  has  been  no  office 
found  on  behalf  of  the  Crown  ;  [i)  and  perhaps  he  [3] 
may  sue  for  injuries  done  to  his  freehold  property. 

He  may  also  sue  for  any  personal  wrong  done  to  him 
before  or  after  the  commencement  of  the  period  of  his 
disability,  e.  g.,  for  an  assault,  {k) 

An  outlaw  can  not,  while  his  outlawry  lasts,  come 
into  court  for  any  other  object  than  to  apply  to  have  his 
outlawry  reversed  or  set  aside,  (/)  and  can  not,  therefore, 
bring  an  action  as  long  as  his  disability  continues,  {m) 

An  outlaw  is  restored,  on  the  reversal  of  his  outlawry, 

(h)  Kynnaird  v.  Leslie,  L.  R.,  I  C.  P.  389  ;  35   L.  J.   226,  C.  P.  ;    Addison. 
Contracts.  6th  ed.,  1024. 

(i)  Cole,  Ejectment,  573.     Doe  d.  GriflTith  v.  Pritchard,  5  B.  &  Ad.  675. 

(k)  Bernard's  case,  Owen,  22  ;    Com.  Dig.,  Forfeiture,  B,  2. 

(/)  Coke,  Lilt.,  12S  a. 

(m)  Addison,  Contracts,  6th  ed.,  1024. 

a  sentence  of  imprisonment  in   a  having  abated  on  his  civil  death, 

state  prison,  for  any  term  less  than  Freeman  v.  Frank,  10  Abb.  Pr.  370. 

life,  suspends  all  the  civil  rights  of  But  still  he  may  be  sued   by  his 

the  person  so  sentenced  during  the  creditors  and  the  suit  against  him 

term  of  such  imprisonment.     3  R.  prosecuted  to  judgment.     Davis  v. 

S.  (7lh  ed.)  2538.     And  the  person  Duffic,  4  Abb.  Pr.,  N.  S.,  478.    Par- 

so  convicted  has  no  right  to  com-  don  of  one  sentenced  to  imprison- 

mence  or  m.iintain  an  action  in  the  ment  for  life  gives  him  the  right,  on 

courts  of   that   state.    O'Brien    v.  habeas  corpus,  \ot\\Q  CMsiody  oi  \\\s 

Hagan,  i   Duer,  664.     Nor  can  he  children  from  his  wife  and  the  hus- 

be    sued    for   a   tort   (the   rape  for  band  she  had  married  upon  the  dis- 

which  he  was  convicted],  the  action  solution  of  the  former  tie  worked  bj 


4  PAKT/I-S     TO    ACTIONS. 

to  all  his  riirhts,  (//)  aiul  stands  m  the  same  position  as  if 
he  had  never  been  outlawed,  {o) 

An  alien  enemy  can  not,  during  the  continuance  o\ 
war,  unless  under  the  license  or  protection  of  the  Crown, 
(/>)  bring  an  action,  or  continue  an  action  commenced 
belore  the  war  began,  {(f)  Under  the  term  alien  enemy 
are  included  not  only  the  subjects  of  any  state  at  war 
with  us,  but  also  any  British  subjects  or  the  subjects  of 
any  neutral  state  voluntarily  residing  in  a  hostile  coun- 
try.' 

British  subjects  detained  prisoners  abroad  are  not 
alien   enemies,   (r)   and  in  one   case,  a  person   held  as  a 

(m)  Com.  Dig.,  Outlawry,  C.  5. 

(p)  Ihid.,  and  St.  John's  College  v.  ]\Iurcott,  7  T.  R.  259. 

(/>)  Wells  V.  Williams,  i  Salk.  46. 

{g)  Le  Brett  v.    Papillon,  4  East,  502  ;    Alcinous  v.  Nigreu,  4  E.  &  B.  217  ; 
24  L.  J.  210,  Q.  B. 

{>■)  Antoine  v.   Morshead,  6  Taunt.  237  ;    Daubuz  v.   Morshead,  6  Taunt 
332. 

t 

the  sentence,  though  they  had  been  U.  S.  274. 

appointed  guardians  of  the  child-  i.  The  persons  must,  at  the  time 
ren.  But  the  remarriage  is  not  of  the  contract,  have  been  under 
affected,  nor  the  sale  of  his  prop-  the  dominion  of  different  and  op- 
erty,  by  the  administrator  appointed  posing  flags.  Acklen  v.  Hickman, 
on  his  civil  death,  nor  the  posses-  60  Ala.  571.  But  when  commercial 
sion  of  his  heirs  which  became  intercourse  between  states  at  war 
vested  by  that  event.  Matter  of  has  been  prohibited  by  the  laws  of 
Deming,  10  Johns.  232,  483.  one  of  them,  contracts  made  in 
Pardon  bars  a  civil  action  for  a  violation  thereof  cannot  be  en- 
penalty  incurred  by  the  crime,  forced  in  its  courts,  and  it  is  their 
United  States  v.  Tilton,  7  Ben.  306  ;  duty  to  so  declare  whether  the  ille- 
United  States  v.  McKee,  4  Dill.  128.  gality  of  the  contract  be  pleaded  or 
It  does  not  restore  forfeited  prop-  not.  Shotwell  v.  Ellis,  42  Miss. 
erty  previously  condemned  and  439;  Mansfield  v.  McLearn,  22  La. 
sold.  Knote  v.  United  States,  95  Ann  216.  But  this  rule  does  not 
U.  S.  149;  nor  invalidate  previous  apply  to  contracts  made  prior  to  the 
Judicial  confiscation  and  sale;  war.  Stiles  v.  Easley,  51  111.  276. 
United  States  v.  Six  Lots  of  Ground,  And  though  the  civil  war  suspended 
I  Woods,  234;  but  does  restore  all  the  judicial  enforcement  of  con- 
rights  of  property  not  become  tracts  between  hostile  parties,  still 
vested  in  others  by  judicial  pro-  their  obligation  did  not  cease  and 
cess ;  Osborne  v.  United  States,  91  the  remedy  revived  with  the  resto- 


WHO     CAN    SUE    AND    BE     SUED.  5 

pnsoner  of  war  in  this  country  was  allowed  to  sue  upon 
a  contract  for  services  rendered  by  him  whilst  a  pris- 
oner, {s) 

The  disability  of  an  alien  enemy  ceases  on  the  restora- 
tion of  peace ;  {t)  and  though  no  action  can  be  brought  on 
contracts  made  with  him  during  the  time  of  war,  an 
alien,  whose  country  has  been  at  war  with  our  [4] 
own,  can,  on  the  restoration  of  peace,  bring  an 
action  on  a  contract  {71)  made  or  for  a  wrong  done  before 
the  commencement  of  the  war.  {v) ' 

The  disabilities  of  an  alien  enemy  are  less  than  they  at 
first  sight  appear.  "  On  declaring  war,  the  king  usually, 
m  a  proclamation  of  war,  qualifies  it  by  permitting  the 
subjects  of  the  enemy  resident  here  to  continue  so  long  as 
they  peaceably  demean  themselves,  and  without  doubt 
such  persons  are  to  be  deemed  alien  friends  in  effect ;  {y^ 
and  though  an  alien  should  come  here  after  the  war  com- 
menced, yet,  if  he  has  been  commorant  here  by  the  license 
of  the  king  ever  since,  he  may  clearly  maintain  an 
action."  {z) ' 

{s)  Sparenburgh  v.  Bannatyne,  i  B.  &  P.  163. 

(/)  Harman  v.  Kingston,  3  Camp.  150,  152  ;  Flindt  v.  Waters,  15 
East,  260. 

(m)  Provided  that  the  Crown  has  not  interfered  to  seize  the  debt,  Flindt  v. 
Waters,  15  East,  260. 

{v)  Harman  v.  Kingston,  3  Camp.  150,  152;  Flindt  v.  Waters,  15  East, 
260. 

(y)  Coke,  Litt.,  129  b,  note  by  Hargreave. 

(2)  Williams,  Exors.,  6th  ed.,  222. 

ration  of  peace.     Semmes  v.  City,  reason  of  voluntary  residence  with- 

&c.,  Ins.  Co.,  36  Conn.  546;  Spen-  in  the  insurrectionary  district,  and 

cer  V.  Brower,  32  Tex.  663.     The  being  an  owner  of  cotton  burned 

same   result  would   have  followed  by  a  confederate  soldier,  under  the 

by    the    principles   of    public    law  orders  of  the  provost-marshal,  has 

without  the  non-intercourse  act  of  no  action  against  the  soldier  for  its 

congress.     United  States  v.  Gross-  destruction   to   prevent   its    falling 

mayer,  9  Wall.  72.     One  co-opera-  into  the  hands  of  the  federal  forces, 

ting    directly   or  indirectly  in   the  Ford  v.  Surget,  97  U.  S.  594. 

insurrection    against    the    govern-  But   a  creditor  in    a  loyal    state, 

ment  of  the   United   States,  or  an  whose  debt  to  a  citizen  of  a  seced- 

enemy   of   the    United    States    by  ing  state  was  sequestrated  by  the 


6  PARTIES     TO    ACTIONS. 

To  an  action  ibr  breach  of  contract  by  two  or  more 
persons,  it  is  a  defense  that  one  of  them  is  a  felon,  an  out- 
law, or  an  alien  enemy  ;  {ci)  and  it  is  said,  that  if  the  cause 
of  action  be  capable  of  severance,  as  an  injury  done  to  a 
joint  chattel,  {b)  the  plaintiff,  who  is  not  a  felon,  &c.,  may 
recover  for  his  share  of  damages  in  spite  of  the  disability 
of  his  co-owner. 

Felons,  outlaws,  and  aliens,  can  sue  as  executors,  ad- 
ministrators, {c)  or  trustees,  and  on  all  occasions  where 
they  do  not  sue  in  their  own  right. 

Felons,  outlaws,  and  aliens  are  liable  to  be  sued. 

Exception  2. — The  sovereign,  foreign  sovereigns,  and  am- 
bassadors can  not  be  sued. 

The  king  can  not  be  made  defendant  in  an  action. 
[5]  Redress  must  be  sought  for,  if  it  is  obtainable  at 
all,  by  a  petition  oi  right,  {dy 
A  foreign  sovereign  clearly  can  not  be  sued  in  the 
•:ourts  of  this  country  for  any  act  done  by  him  in  ths 
character  of  a  sovereign  prince ;  {e)  and  it  would  appear 
most  probable  that  he  can  in  no  case  be  made  defendant 
in  an  action.  {/) 

(a)  Com.  Dig.,  Abatement,  E.  2. 

(l>)  Lush,  Practice,  3rd  ed.,  5. 

[c)  Caroon's  case,  Croke,  Car.  9  ;  Brocks  v.  Phillips,  Croke,  Eliz.  683, 
Coke,  Litt..  123  b  ;  Kynnaird  v.  Leslie,  L.  R.,  I  C.  P.  400  ;  35   L.  J.  226,  C.  P. 

{d)  Canterbury's  case,  I  Phil.  322  ;  and  Com.  Dig.,  Action,  C.  I. 

(e)  Duke  of  Brunswick  v.  King  of  Hanover,  6  Beav.  i  ;  2  H.  L.  I ;  Wads- 
worth  V.  Queen  of  Spain,  17  Q.  B.  171  ;    20  L.  J.  488,  Q.  B. 

(/)  But  see  Munden  v.  Duke  of  Brunswick,  10  Q.  B.  656  ;  16  L.  J.  300, 
Q.  B.     Westlake,  Private  International   Law,  ss.  135-139. 

ccnfederate  authorities  of  that  state,  v.  The  Light  Boats,  11  Allen  162; 

has  his  action  against  the  debtor's  Goldsmith    v.    Revenue    Cutter,    6 

executors  after  the  war.     Williams  Oreg  252.     Nor  can  a  state  of  the 

V.  Brufify,  96  U.  S   176  Union  in  its  own  courts.     Ambler 

I.  A  government  cannot  be  sued  v.  Auditor  General,  38  Mich.  750; 

in  its  own  courts  without  its  own  People    v.   Talmage,   6   Gal.   257 ; 

consent.     The  Siren,  7  Wall.  153;  I'eople  v.  Miles,  56  Gal.  401  ;  Rail- 

fhe   Davis,   10   Wall.    18;    United  road  Co.  v.  Brown,  24  Minn.  575; 

States  V.  Clark,  8  Pet.  444 ;  Briggs  Fisk  v.  Cuthbert,  2  Mont.  595  ;  or 


WHO     CAN    SUE    AND     BE     SUED. 


A  public  minister  {g)  accredited  to  the  Queen  by  a 
foreign  state,  is  privileged  from  liability  to  be  sued  here 
in  civil  actions,  (/:)  and  hence  such  a  minister  has  been 
held  not  liable  to  be  sued  for  calls  due  to  a  company  of 
which  he  was  shareholder ;  (z)  nor  would  it  seem  can  he 
be  sued  for  a  tort,  e.  g.,  an  assault.' 

(g)  Magdalena  Steam  Nav.  Co.  v.  Martin,  2  E.  &  E.  94;  28  L.  J.  310, 
Q.  B. 

(A)  Magdalena  Steam  Nav  Co.  v.  Martin,  2  E.  &  E.  115  ;  28  L.  J.  510, 
Q.  B. 

(?)  Ibid. 


in  the  federal  courts  ;  McCauley  v, 
Kellogg,  2  Woods,  18.  And  though 
the  suit  be  against  the  executive 
officers  in  their  official  capacity,  it 
is  in  effect  against  the  state  and  pro- 
hibited by  the  twelfth  amendment 
to  the  constitution.  Ibid.  And  the 
mere  consent  of  a  state  officer,  by 
answering  in  its  name,  cannot  bind 
it.  Dunn  v.  Railroad  Co.,  8  S.  C. 
231.  When  the  constitution  pro- 
vides that  the  legislature  shall  by 
law  direct  the  manner  and  courts  in 
■which  suits  shall  be  brought  against 
the  state,  there  can  be  no  action 
prosecuted  any  other  way.  Green 
V.  Graham,  29  Ala.  61  ;  Bradford  v. 
State,  7  Neb.  in.  And  if  the  leg- 
islature fails  to  thus  provide,  a 
claimant  is  without  remedy.  Tur- 
ner V.  State,  27  Ark.  337  ;  People 
V.  Talmage,  6  Gal.  258. 

I.  But  an  indictment  of  a  citizen 
for  an  assault  on  an  ambassador  is 
not  a  case  affecting  ambassadors, 
within   the   second   section   of  the 


third  article  of  the  constitution. 
United  States  v.  Ostega,  1 1  Wheat. 
467.  The  exemption  of  an  ambas- 
sador from  the  municipal  law  of  the 
country  is  not  personal,  but  is  the 
privilege  of  the  government  he  rep- 
resents, and  cannot  be  waived. 
Davis  V.  Packard,  7  Pet.  276.  The 
privilege  attaches  to  domestic  ser- 
vants of  a  foreign  minister.  United 
States  V.  La  Fontaine,  4  Cranch  C. 
C.  173  ;  to  attaches  of  the  legation  ; 
United  States  v.Benner,  Baldw.234; 
and  to  the  dwelling-house  of  the 
minister ;  United  States  v.  Jeffers, 
4  Cranch  C.  C.  704;  but  not  to  his 
garden;  1  Op.  Atty.-Gen.  141. 
That  the  person  has  been  received 
as  an  ambassador  by  the  executive 
is  conclusive  as  to  his  public  char- 
acter, and  the  court  cannot  inquire 
into  the  validity  of  his  appointment. 
United  States  v.  Liddle,  2  Wash.  C. 
C.  205.  Consuls  are  not  privileged 
as  public  ministers.  Common- 
wealth v.  Kosloff,  5  Scrg.  &  R.  543 


PARTIES     TO    ACTIONS. 


CHAPTER   II. 

THE    DIVISION    OF    ACTIONS. 

Actions  are  of  different  kinds,  and  can  be  classed  or 
divided  on  various  principles,  (a) 

T\\Qy  can  be  divided, — firstly,  according  as  they  are 
actions  on  contract  (called  also  actions  ex  contractu),  or 
actions  for  a  wrong  or  tort  (called  also  actions  ex  delicto), 
under  which  main  classes  they  can  be  again  subdivided 
according  to  what  are  called  their  forms  ; — secondly, 
according  as  they  are  transitory  or  local. 

The  most  important  division  is  that  into  actions  on 
contract,  and  actions  for  tort. 

(A)  Actions  on  Contract  and  Actions  for  Tort,  or  Actions  ex 
contractu  and  Actions  ex  delicto. 

The  maintenance  of  an  action  depends  upon  the  exis- 
tence of  what  is  termed  a  "  cause  of  action,"  i.  e.,  of  a 
right  on  the  part  of  one  person  (the  plaintiff),  combined 
with  the  violation  of,  or  infringement  upon,  such  right  by 
another  person  (the  defendant).  Thus,  if  A.  enters  into 
a  contract  with  X.  for  the  supply  of  goods  by  X.  to  A., 

and  X.  does  not  supply  the  goods,  or  if  X.  wrong- 
[7]       fully  imprisons  A.,  A.  has  in  either  case  a  "  cause 

of  action  "  against  X.     In  the  first  instance  A.  has 

(rt)  An  old  division  is  that  into  real  actions,  i.  e.,  actions  brought  for  the 
specific  recovery  of  lands,  tenements,  and  hereditaments  ;  personal  actions, 
i.  e.,  actions  brought  either  for  the  specific  recovery  of  goods,  or  for  the  re- 
covery of  debts,  or  of  damages  in  compensation  for  a  breach  of  contract,  ot  any 
other  injury ;  and  mixed  actions,  z.  ^.,  actions  appertaining  in  some  degree  to 
both  of  the  former  classes.  All  the  actions  treated  of  in  this  treatise  are,  with 
the  exception  of  Ejectment,  personal  actions. 

Ejectment,  which  may  be  considered  a  mixed  action,  is  treated  of  sepa 
rately      See  Chap.  XXXIII. 


DIVISION    OF    ACTIONS.  9 

a  right  to  have  the  contract  performed  by  X.,  and  there 
has  been  a  violation  or  infringement  upon  this  right  in 
consequence  of  the  non-performance  or  breach  of  the  con- 
tract by  X.  In  the  second  instance  A.  has  a  right  to  his 
personal  liberty,  and  there  has  been  a  violation  or  in- 
fringement upon  this  right,  through  the  imprisonment  of 
A.  by  X.  There  goes,  it  should  be  noticed,  to  make  up 
the  cause  of  action  at  once  the  "  existence  "  and  the  "  vio- 
lation "  of  a  right,  and  the  expression  "  cause  of  action  " 
means  (in  strictness)  the  whole  cause  of  action,  i.  e.,  all 
the  facts  which  together  constitute  the  plaintiff's  right  to 
maintain  the  action,  [b)  This  should  be  noticed,  because, 
whilst  the  expression  "  action  on  contract  "  directs  atten- 
tion to  the  right  only  as  the  foundation  of  the  action,  the 
expression  "action  for  tort  "  directs  attention  to  the  "  in- 
fringement "  of  the  right  only  as  the  foundation  of  the 
action,  and  because  the  expression  "cause  of  action"  is 
sometimes  less  accurately  {c)  used  as  meaning  one  part 
only  of  the  cause  of  action,  sc,  the  violation  of,  or  the 
infringement  upon,  the  plaintiff's  right. 

In  each  of  the  supposed  cases  {sc,  of  an  action  for  the 
non-delivery  of  goods,  and  of  an  action  for  false  impris- 
onment), there  exists  a  right  on  the  part  of  the  plaintiff; 
but  his  right  is  in  each  instance  of  a  different  character. 
In  the  first  case,  A.'s  right  is  a  right  against  X.  only,  and 
depends  solely  on  the  existence  of  a  contract  between 
him  and  X.  In  the  second  case,  A.'s  right,  sc.  not  to  be 
deprived  of  his  personal  liberty,  is  a  right  against  X.  ; 
but  it  is  also  a  right  possessed  by  A.  against  the  world 
generally,  and  it  is  further  a  right  independent  of  the 
existence  of  any  contract  between  A.  and  X.  The 
first  right  is  a  right  dependent  upon  the  existence 
of  a  contract.  The  second  right  is  inde- 
pendent of  the  existence  of  any  contract.  Upon  [8] 
this  difference  depends  the  distinction  between 
actions  on  contract  and  actions  for  tort. 

{b)  See  Allhusen   v.    Malt^arcjo,  L.   R.,  3    Q.   13.  340  ;  37    I..  J.  169,  Q.  B.  , 
Sichil  V.  Horch,  2.  H.  &  C.  954 ;    33  L.  J.  179.  Ex. 

{c)  Slade  v.  Noel,  4  F.  &  F.  424  ;  Life  v.  Rmm.I,  f)  \V.  R.  283. 


lO  PARTIES     TO    ACTIONS. 


I.  Actions  on  Contract,  or  ex  contractu. 

An  action  on  contract  is  an  action  brought  for  the  non- 
performance or  breach  of  any  contract  or  promise, 
whether  expressed  or  implied,  whether  made  by  deed, 
simply  in  writing,  or  by  word  of  mouth.  An  action  on 
contract,  though  said  to  be  brought  on  the  contract, 
because  a  contract  must  exist  as  the  basis  of  it,  is,  strictly 
speaking,  an  action  for  the  breach  of  a  contract.  And, 
in  order  to  maintain  the  action,  it  is  no  less  necessary 
that  a  contract  should  be  broken  than  that  it  should  exist. 
This  holds  good  whatever  be  the  nature  of  the  contract 
sued  upon,  e.  g.,  whether  it  be  a  promise  to  pay  for  goods 
supplied  or  a  covenant  by  deed  to  pay  rent. 

In  the  case  of  a  debt,  e.g.,  for  goods  supplied  other- 
wise than  on  credit,  an  action  can,  it  is  true,  be  brought 
immediately  that  a  debt  is  incurred,  i.  e.,  on  the  delivery 
of  the  goods,  and  without  any  demand  upon  the  debtor 
for  pa3'ment.  The  explanation  of  this  is,  that  in  the  case 
of  such  a  debt  the  law  considers  the  agreement  to  be  (in 
the  absence  of  any  special  terms)  to  pay  the  debt  imme- 
diately, and  the  mere  non-payment  constitutes  a  breach 
of  contract.' 

In  a  covenant,  on  the  other  hand,  there  is  generally  a 
time  fixed  for  the  performance  of  the  covenant,  and  until 
this  time  has  arrived,  an  action  for  its  non-performance 
can  not  be  brought.  But  in  either  case  no  action  can  be 
brought  on  the  contract  unless  and  until  a  breach  of  the 
contract  has  occurred,  {d) 

(d)  Com.  Dig.,  Action,  E.  A  case  such  as  Hochster  v.  De  la  Tour,  2  E. 
a  B.  678,  22  L.  J.  456,  Q.  B.,  where  a  person  engaged  to  enter  into  an  em- 
ployment in  June,  was  held  entitled  to  comn  ence  in  May  ar  action  against  hi« 
proposed  employer  for  announcing  his  resolution  not  to  employ  him,  is  not  in 
reality  inconsistent  with  this  statement,  since  the  defendant  was  held  to  liave 
broken  his  contract  by  the  refusal  to  employ  the  plaintiff. 

I.  And  where  the  suit  was  brought  notified  of  its  completion,  it  was 
the  very  day  the  work  was  comple-  held  premature.  Smadbeck  v.  Sis- 
ted,  and  the  defendant  had  not  been    son,  31  Hun,  58'2. 


DIVISION    OF    ACTIONS.  ii 


2.  Actions  for  Tort,  or  ex  delicto 

An  action  for  tort  is  an  action  for  a  wrong  inde-  [9J 
pendent  of  contract,  {e)  e.g.,  for  an  assault,  imprison- 
ment, fraudulentmisrepr  esentation,  &c.  In  other  words,  a 
wrong  or  a  tort  is  a  violation  by  one  person  of  an}^  of  the 
rights  (<?.  g.,  the  right  to  personal  liberty)  possessed  by 
?inother  person  independently  of  any  agreement  with  the 
'vrong-doer,  and  an  action  for  a  wrong  or  a  tort  is  an 
action  on  account  of  the  violation  of,  or  interference  with, 
such  rights.  (/) 

Hence,  to  the  maintenance  of  an  action  for  tort,  two 
things  are  necessary.  In  the  first  place,  there  must  exist 
a  "  right  "  on  the  part  of  the  plaintiff,  independently  of 
any  agreement  between  him  and  the  defendant.  This 
corresponds  to  the  right  existing  by  contract,  which 
forms  the  basis  of  an  action  on  contract.  In  the  second 
place,  there  must  exist  on  the  part  of  the  defendant  a 
violation  of,  or  interference  with,  this  right  of  the  plaintiff. 
This  corresponds  with  the  breach  of  contract  in  an  action 
on  contract. 

Thus  an  action  for  an  injury  done  to  the  plaintiff  by 
the  careless  driving  of  the  defendant,  depends  upon  the 
right  of  the  plaintiff  (independently  of  any  contract)  not 
to  be  injured  by  the  negligence  of  the  defendant,  and 
upon  the  violation  of  such  right  through  the  carelessness 
of  the  defendant. 

Incidents  of  Actions  on  Contract  and  Actions  for  Tort. 

There   are  several  leading  distinctions  (affecting  the 
choice  of  parties)  between  actions  on  contract  and 
actions  for  tort,  which,  though  considered  at  length     [10] 

(e )  See  C.  L.  P.  Act.  1852,  Sclied.  13. 

(/)  A  right  conferred  by  contract  may  be  either  a  positive  right,  /.  e.,  a 
right  to  have  a  thing  done,  e.  g.,  to  have  a  house  built — or  a  negative  right,  i.  e., 
to  have  something  not  Aonc.e.g.,  not  to  be  hindered  from  passing  over  a  cer- 
tain ])iece  of  land:  a  right  independent  of  contract  is  in  almost  every  case  a 
negative  right,  f.  ,^.,  not  to  tx-  as-aullcfl.  not  to  be  defrauded,  &.C. 


12  PARTIHS     TO    ACTIONS. 

in   different   parts   of  this  treatise,   may  be  here  pointed 
out  generally. 

The  chief  of  these  differences  arc  as  follows: — 
I.  No  one  can  sue  or  be  sued  for  the  breach  of  a  con- 
tract who  "  is  a  stranger  to  the  contract,"  or,  as  it  is 
sometimes  expressed,  "  is  not  privy  to  the  contract." 
What  is  meant  is,  that  the  person  to  sue  for  the  breach  ot 
a  contract  must  be  the  person  with  whom  the  contract  is 
in  the  eve  of  the  law  made,  and  that  no  one  can  sue  for 
the  breach  of  a  contract  not  made  with  him,  simply  on 
the  ground  that  he  is  injured  by  the  breach,  {g)  Any 
person,  on  the  other  hand,  who  is  injured  by  a  wrongful 
act,  may  bring  an  action  for  tort  against  the  wrong-doer, 
even  though  the  injury  be  an  indirect  one,  as  where  a 
master  is  injured  in  consequence  of  an  injury  done  to  his 
servant.  (//)'  The  same  act,  moreover,  may  result  in  an 
interference  with  the  separate  rights  of  an  indefinite 
number  of  persons,  or  in  other  words,  be  the  cause  oi 
many  torts,  {i)  e.  g.,  the  careless  act  of  an  engine-driver 
may  cause  separate  injuries  or  torts  to  an  indefinite  num- 
ber of  passengers. 

From  the  fact  that  the  same  act  may  constitute  a  tort 
to  an  indefinite  number  of  persons,  it  follows  that  while 
the  person  or  persons  to  sue  for  a  "breach  of  contract 
must  be  a  definite  person  or  definite  persons  ascertainable 
before  the  contract  is  broken,  the  number  of  persons  who 
may  have  sepai^ate  rights  of  action  against  a  wrong-doer 
for  the  same  tortious  act  is  indefinite  and  unascertainable 

before  the  commission  of  such  act. 
[ii]  2.  In  an  action  on  contract,  all  the  persons  with 

{g)  Winterbottom  v.  Wright,  lo  M  &  W.  109  ;   II  L.  J.  415,  Ex.,  Rule  lO. 

{h)  Compare  Alton  v.  Midland  Kail.  Co.,  19  C.  B.,  N.  S.,  213  ;  34  L.  J. 
292,  C.  P. 

[i)  See  Scott  v.  Shepherd,  i  Smith,  L.  C,  6th  ed.,  422-423,  judgment  of 
Gould,  J.,  "  Whenever  a  man  does  an  unlawful  act  he  is  answerable  for  all  the 
consequences." 

I.  Or  where  a  servant  is  injured  &c.,  R.  R.  Co.  v.  May,  108  111.  288  ; 
in  consequence  of  the  negligence  or  road  master;  Atchison,  &c.,  R. 
of  his  master's  foreman,     Chicago,     R.  Co,  v.  Moore,  31  Kan.  197. 


DIVISION    OF    ACTIONS.  13 

whom  the  contract  is  (in  the  eye  of  the  law)  made,  should 
join  as  plaintiffs,  since  A.  can  not  recover  damages  for  the 
breach  of  a  contract  made  with  A.  and  B. 

In  an  action  for  tort,  on  the  other  hand,  it  is  frequently 
a  matter  of  choice  whether  the  persons  injured  should 
sue  separately  or  jointly,  and  in  any  case  the  non-joinder 
of  a  plaintiff  is  a  matter  of  comparatively  small  impor 
tance.  For,  if  in  such  an  action,  where  A.  and  B.  ought 
to  sue  jointly,  A.  sues  alone,  he  may,  it  is  true,  be  forced 
(by  a  plea  in  abatement)  to  join  B.  with  him.  But  if  the 
non-joiiider  of  B.  is  not  objected  to  at  the  proper  stage  of 
the  proceedings  before  the  trial.  A.,  though  it  may  appear 
that  B.  ought  to  have  been  joined,  will  recover  damages 
in  proportion  to  the  injury  which  he  himself  has  suffered, 
and  no  objection  can  be  taken  to  a  subsequent  action  by 
B.  alone  for  the  injury  which  B.  has  sustained,  {k) 

In  other  words,  a  contract  with  A.  and  B.  jointly  is  a 
different  thing  from  a  contract  with  A.  alone,  and  it  is  an 
answer  to  an  action  by  A.  that  the  contract  sued  upon 
was  a  contract,  not  with  A.,  but  with  A.  and  B.  But  an 
injury  to  A.  is  no  less  an  injury  to  him  because  it  was  an 
injury  to  A.  and  B.  jointly.  Hence,  if  A.  sues  alone  for 
an  injury,  e.  g.,  to  the  joint  property  of  A.  and  B.  (though 
it  may  be  possible  by  proper  pleading  to  compel  A.  to 
join  B.  with  him  as  plaintiff),  it  is  no  answer  to  the  action 
by  A.  for  the  injury  to  him  that  the  tort  committed  was  a 
tort  against  A.  and  B.  jointly.  (/) 

3.  In  an  action  on  contract,  all  the  persons  by  whom 
the  contract  was  made  should,  properly  speaking,  be 
joined  as  defendants,  i.  e.,  joint  contractors  should  be  sued 
jointly  for  a  breach  of  contract,  and  it  is  an  error  to  sue 
X.  alone  for  the  breach  of  a  contract  made  by  X.  and  Y. 
jointly.  The  error  is,  however,  of  minor  import- 
ance, since,  though  the  defendant,  X.,  can  by  [12] 
proper  pleading  {i.  e.,  by  a  plea  in  abatement)  com- 
pel the  plaintiff  to  make  Y.  a  co-defendant,  still,  it  the 
objection  be  not  taken  at  the  proper  stage  of  the  proceed- 

(k)  Addison  v.  Overend.  6  T.  R.  766  ;  Sedgwortli  v.  Overeiid,  7  T.  R.  279. 
(/)  See  Chapter  XXXIV.,  as  to  non-joiiidcr  of  plaintiffs. 


14  PARTIES     TO    ACTIONS. 

ings  before  tlic  trial,  X.  will  be  held  liable  on  the  joinl 
contract  of  X.  and  Y.  (w) 

In  an  action  for  tort,  no  objection  whatever  can  be 
made  to  the  non-joinder  of  a  joint  wrong-doer  as  defend- 
ant. 

In  other  words,  joint  contractors  are  jointly  liable,  but 
a  wrong-doer  is  always  separately  liable  for  his  torts, 
even  though  another  person  may  be  liable  with  him  ; 
hence,  in  an  action  against  X.  alone  on  a  contract  made 
by  X.  and  Y.,  it  is  an  objection  that  the  action  ought  to 
have  been  brought  against  X.  and  Y.  jointly.  But  to  an 
action  for  tort  against  X.,  it  is  no  objection  whatever  that 
the  wrong  complained  of  was  committed  by  X.  and  Y. 
jointl}-,  since  X.  is  none  the  less  responsible  for  a  tort 
because  Y.  also  happens  to  be  responsible. 

4.  In  an  action  on  contract,  the  misjoinder  of  defend- 
ants is,  unless  amended,  a  fatal  error,  i.  e.,  a  contract  by 
X.  and  Y.  is  a  different  contract  from  one  by  X.  alone, 
and  if  an  action  be  brought  against  X,  and  Y.,  on  a  con- 
tract made  by  X.  onl}'^,  the  action  will  fail. 

On  the  other  hand,  the  misjoinder  of  defendants  in  an 
action  for  tort  is  of  small  importance,  i.  e.,  if  X.  and  Y.  be 
sued  jointly  for  a  tort  committed  by  X.  alone,  a  verdict 
will  be  found  against  X.,  and  in  favor  of  Y.,  and  it  will  be 
no  defense  to  X.,  that  though  he  is  guilty  of  a  wrong,  Y. 
is  not  guilty,  {n) 

5.  A  woman  is  not  liable  for,  and  can  not  be  sued  on, 
contracts  made  by  her  during  coverture,  and  no  person 
is,  as  a  general  rule,  responsible  for  or  liable  to  be  sued 

on    contracts   made    during   infancy  ;  but    married 

[13]      women  and  infants  are  in  general  responsible  and 

liable  to  be   sued  for  torts  committed  by  them,  [o) 

The  distinction  between  an  action  on  contract  and  an 

action  for  tort  is  in  itself  clearly  marked,  but  the  distinction, 

(w)  Rice  V.  Shute,  i  Smith,  L.  C,  6th  ed.,  511. 

(«)  For  the  effect  of  non-joinder,  misjoinder,  and  the  amendment  of  these 
errors,  see  Chapter  XXXIV. 

{o)  In  the  superior  courts,  in  an  action  on  contract,  a  verdic^  for  more  than 
£20  carries  costs  ;  but  in  an  action  for  tort,  a  verdict  for  more  than  ;^io  carries 
costs.     30  &  31  Vict.  c.  42,  s.  5. 


DIVISION    OF    ACTIONS.  15 

and  the  differences  which  follow  from  it,  will  not  be 
found  to  apply  to  all  the  actions  which  are  counted  under 
the  one  or  the  other  class. 

This  arises  from  the  existence  of  certain  actions,  which 
in  form  are  actions  on  contract,  but  are  not  really  brought 
for  the  violation  of  rights  conferred  by  contract ;  and  of 
certain  action?  which  in  form  are  actions  for  tort,  but  are 
not  in  reality  brought  for  the  violation  of  rights  inde- 
pendent of  contract.  The  first  class  consists  of  actions 
for  the  breach  of  what  is  called  an  "  implied  contract," 
and  which  are  sometimes  termed  actions  "  quasi  ex  con- 
tractu." The  second  class  consists  of  actions  for  what 
are  called  "torts  founded  on  contract." 

There  are  onlv  "  two  kinds  of  common  law  actions  ;  one 
for  injury  to  person  or  property,  and  the  other  for  breacii 
of  contract.  Now,  the  ordinary  case  of  breach  of  contract 
is  where  both  parties  have  agreed  to  a  certain  thing,  and 
one  breaks  the  promise  which  he  has  made.  But  for  a 
long  time  implied  contracts  have  been  admitted  into  the 
law  where  a  transaction  having  taken  place  between  par- 
ties, a  state  of  things  has  arisen  in  reference  to  it  which 
was  not  contemplated  by  them,  but  is  such  that  one  party 
ought  in  justice  and  fair  dealing  to  pay  a  certain  sum  of 
money  to  the  other."  if)  The  essence  of  an  action 
on  an  "  implied  contract  "  {q)  is  that  it  is  brought  [14] 
on  account  not  of  any  actual  contract,  but  of  some 
transaction  in  virtue  of  which,  though  there  has  been  no 
contract  between  the  parties,  one  party  ought  to  pay 
money  to  another  as  if  there  were  a  contract,  whence  the 
action  may  be  termed  an  action  "  quasi  ex  contractu,"  i.  e., 
"  as  it  were  on  a  contract." 


(/)  Per  Martin,  B.,  Freeman  v.  Jeffries.  L.  R  ,  4  Ex.  199  ;  3S  L.  J 
121,  Ex.  ♦ 

(q)  The  expression  "  implied  contract  "  is  u>ecl  in  several  -enses.  In  the 
sense  in  which  the  term  "  imjilied  contract"  is  here  used,  an  action  on  an  im- 
plied contract  nearly  corresponds  with  an  action  riuasi  ex  contractu,  since  that 
term  is  employed  in  Roman  law  to  denote  certain  actions  which  may  be  brought 
where,  as  a  matter  of  fact,  there  has  been  no  contract  lietween  the  parties,  b  1 
•>  here  a  state  of  things  has  arisen  in  which  the  law  considers  one  of  tiiem  boun  I 
■«>  the  other  in  the  same  manner  as  if  a  contract  had  been  ni.ide. 


i6  PARTIES     TO    ACTIONS. 

One  action  cS  this  clnss  is  what  is  called   "  an  action 
for  money  had  and  received." 

This  is  "  a  kind  of  equitable  action  to  recover  back 

money  which  ought  not  in  justice  to  be  kept It 

lies  only  for  money  which,  ex  a^quo  et  bono,  the  defend- 
ant ought  to  refund It  lies  for  money  paid  by 

mistake,  (r)  or  upon  a  consideration  which  happens  to 
fail,  or  for  money  got  through  imposition,  express  or  im- 
plied, or  extortion,  or  oppression,  or  undue  advantage 
taken  of  the  plaintiff's  situation,  contrary  to  laws  made 
for  the  protection  of  persons  undci  those  circumstances. 
In  one  word,  the  gist  of  this  kind  of  action  is,  that  the 
defendant  is  obliged  by  ties  of  natural  justice  and  equity 
to  refund  the  money."  {s) 

The  action  for  money  received,  which  is  of  a  very 
extensive  character,  and  includes  within  it  actions  of  very 
different  kinds,  is  sometimes  in  reality  an  action  on  con- 
tract, since  "  contracts  arising  from  agreement  frequently 
result  in  a  receipt  and  holding  of  money  by  the  defendant 
for  the  use  of  the  plaintiff,  as  for  example,  where  the  de- 
fendant has  been  engaged  by  the  plaintiff  as  agent  to  re- 
ceive money,  and  to  account  for  and  pay  ovv'ir  the  amount 
received,  and  has  received  money  by  virtue  of  his  em- 
ployment, and  he  is,  therefore,  bound  by  the  terms  of  his 
engagement  to  pay  over  to  the  plaintiff  the  money 
received ;  but  such  money  being  in  fact  received 
and  held  by  him  for  the  use  of  his  employer,  hi? 
[15]  liability  may  be  concisely  described  as  for  nione} 
received  by  the  defendant  for  the  use  of  the  plain- 
tiff, without  entering  into  particulars  of  the  contract 
under  which  it  was  received."  {t) 

But  it  is  more  frequently  an  action  "  quasi  ex  con 
tractu,"  and  the  supposed  contract  may  be  implied  from 
an  infinite  variety  of  circumstances  which  this  is  not  thf 
place  to  enumerate. 

(r)  Sc.   a   mistake  of  fact,  Milnes  v.  Duncan,  6    B.   &   C.  671  ;  Marriott  T 
flampton,  2  Smith,  L.  C,  6th  ed.,  388. 

(s)  Per  Mansfield,  C.  J.,  Moses  v.  Macfarlane,  2  Burr.  1012. 
{()  Leake,  Contracts,  47,  48. 


DIVISION    OF    ACTIONS.  17 

The  action  may,  lastly,  depend  on  the  existence  of  a 
distinct  tort,  since,  in  many  cases,  a  person,  by  wronging 
whom  a  wrong-doer  has  gained  money,  may,  if  he  prefers 
it,  instead  of  suing  for  the  wrong  committed,  bring  an 
action  for  the  money  gained  by  the  wrong,  treating  it  as 
money  received  to  his  use.  Thus,  "  take  the  case  of  a 
man  selling  the  goods  of  another  without  authority,  and 
receiving  the  proceeds  of  such  sale.  The  law  allows  the 
party  whose  goods  are  so  sold,  to  declare  in  an  action  for 
wrongful  conversion,  or,  at  his  election,  to  sue  on  the 
implied  promise  to  pay  over  the  proceeds  to  him,  though, 
in  truth,  there  was  no  such  promise."  {u)  This  is  one  of 
the  "  cases  in  which  the  law  has  invented  fictions  to  give 
a  more  convenient  remedy  to  the  party  wronged."  {v) 

In  this  and  other  instances,  (j)  the  action,  which  is  in 
form  an  action  on  contract,  and  partakes  of  most  of  the 
incidents  proper  to  such  an  action,  may  be  considered  as 
being  in  reality  an  action  for  tort,  brought  for  conveni- 
ence  in  the  form  of  an  action  on  contract. 

The  action  also  for  "  money  paid  "  is,  in  many  cases, 
one  quasi  ex  contractu.  When,  for  instance,  A.  is  com- 
pelled to  pay  money  which  X.  ought  to  have  paid,  A. 
may,  under  some  circumstances,  sue  X.  for  the 
amount,  as  for  money  paid  for  X.,  though  there  is  [16] 
no  real  agreement  by  X.  to  repay  the  money,  and 
the  action  therefore  can  not,  in  substance,  be  considered 
an  action  for  breach  of  contract. 

Where  one  party  to  an  action  has  obtained  a  judgment 
against  another,  he  has  a  right,  if  he  chooses,  to  bring  an 
action  on  the  judgment  for  the  money  due.  This  right 
arises  from  the  existence  not  of  a  contract,  but  of  a  cir- 
cumstance {sc,  the  recovery  of  a  judgment),  which  en- 
ables the  plaintiff  to  sue  the  defendant  as  if  there  had 
Deen  a  contract  between  them,  i.  e.,  it  is  a  right  quasi  ex 
contractu. 

(u)  Compare  34  I-  J.  297,  C.  P. 

(v)  Alton  V.  Midl.niul   Rail.  Co.,  19  C.   B..  N.  S.  241  ;  34  L.  J.  292,0.  P., 
per  WiLLES,  J.     See  Lytbgoc  v.  Vernon,  5  H.  &  N.  160 ;  29  L.  J.  164,  Ex. 
{y )  Hrcwcr  v,  .Sparrow,  7  B.  &  C.  310. 
2 


i8  PARTIES     TO     ACTIONS. 

"  If  a  contract  imposes  a  legal  duty  upon  a  party,  the 
neglect  of  that  duty  is  a  tort  founded  on  contract,  so 
that  an  action  ex  contractu,  for  the  breach  of  contract, 
or  an  action  ex  delicto,  for  the  breach  of  duty,  may  be 
brought  at  the  option  of  the  plaintiff."  (^) 

"  That  there  is  a  large  class  of  cases  in  which  the 
foundation  of  the  action  springs  out  of  the  privity  oi 
contract  between  the  part'.js,  but  in  which,  nevertheless, 
the  remedy  for  the  breach  or  the  non-performance  is 
indifferently  either  assumpsit  {t.  e.,  an  action  for  breach 
ot  contract),  or  case  upon  tort,  is  not  disputed.  Such  are 
the  actions  against  attorneys,  surgeons,  and  other  profes- 
sional men  for  want  of  competent  skill  in  the  services 
which  they  undertake  to  render  ;  actions  against  common 
carriers,  against  shipowners  on  bills  of  lading,  against 
bailees  of  different  descriptions,  and  in  numerous  other 
cases  in  which  the  action  is  brougnt  in  tort  or  on  con- 
tract, at  the  election  of  the  plaintiffs."  {a) 

Actions,  therefore,  for  torts  founded  on  contract,  are 
actions  brought,  not  directly  for  a  breach  of  contract, 
but  indirectly  for  a  breach  of  duty,  arising  from  the  exis- 
tence of  a  contract.  As  being  for  a  breach  of  duty,  they 
are  in  form  actions  for  tort.  As  being  for  the 
[17]  breach  of  a  duty  connected  with  a  breach  of  a  con- 
tract, they  partake  of  the  character  of  actions  on 
contract. 

It  is  clear  that  such  actions  must  be  in  substance 
(whatever  their  form)  either  actions  ex  delicto  or  actions 
ex  contractu.  But  some  diversity  of  opinion  has  existed 
on  the  question  to  which  of  these  classes  they  belong,  and 
hence  as  to  the  further  question  by  what  rules  they  are  to 
be  governed,  or,  in  other  words,  whether  the  incidents  of 
actions  on  contract,  or  of  actions  for  tort,  rightly  attach 
to  actions  for  torts  founded  on  contract,  {b) 

"  The  word  duty,"  it  has  been  said,  "  is  introduced 

(z)  Addison.  Torts,  3rd  ed.,  13. 

(a)  Boorman  v.  Brown,  il  L.  J.  439,  Ex.  (Ex.  Ch.),  per  TiNDAL,  C.  J. 

(b)  In  considering  this  question,  il  may  be  well  to  bear  in  mind  that  the 
gi-eater  number  of  such  actions  are  actions  against  common  carriers. 


DIVISION    OF    ACTIONS.  19 

into  this  declaration  [against  ^  carrier  for  non-delivery], 
but  let  us  see  what  is  meant  by  the  defendant's  duty 
How  did  he  undertake  any  duty  except  by  his  agreement 
to  carry  and  deliver  the  goods  ?  The  duty  of  a  servant 
or  the  duty  of  an  officer  I  understand,  but  the  duty  of  a 
carrier  I  do  not  understand,  otherwise  than  as  that  duty 
arises  out  of  the  contract.  Suppose  a  man  undertake  to 
supply  me  as  a  builder  with  timber  and  with  other  ma- 
terials for  building.  He  imposes  on  himself  the  duty  ol 
performing  his  contract,  but  no  other  duty ;  and  I  may 
maintain  an  action  against  him  for  a  breach  of  the  con 
tract,  which  in  that  sense  will  be  a  breach  of  duty. 
(<:)...!  suppose  there  can  be  no  doubt  that  if  a 
common  carrier  accepts  goods  to  carry,  and  then  dies,  an 
action  will  lie  against  his  executors.  How  is  that?  Why, 
because  the  action  is  founded  on  contract.  But  the  form 
of  the  action  can  not  alter  the  nature  of  the  transaction. 
The  form  of  the  transaction  is  originally  contract,  and 
the  circumstance  of  an  action  lying  against  the  executors 
shows  that  it  is  so.  How  an  action  against  the 
carrier  on  the  custom  ever  came  to  be  considered  [18] 
an  action  in  tort  I  do  not  understand,  but  it  is  so 
considered."  {d) 

So,  in  an  action  (c)  by  a  master  against  a  railway  com 
pany,  on  account  of  an  injury  done  to  his  servant  when 
being  carried  by  the  company,  the  master  was  held  not 
capable  of  suing,  on  account  of  the  action  being  in  sub- 
stance an  action  on  contract.  In  this  case  the  law  is  thus 
laid  down:  "The  liability  of  the  defendants  in  the  case 
before  us  is  of  the  latter  kind  [/.  e.,  toundcd  on  contract], 
and  falls  within  the  principle  of  a  seriesof  decisions  which 
cave  no  room  for  doubt.  The  case  does  not  .  .  .  fall 
within  the  principle  C(jntcndcd  for  on    the    part   of  the 

ic)  "An  action  on  the  custom  of  llie  realm  against  a  common  carrier  is  foi 
a  tort  or  for  a  supposed  crime,  and  the  plea  is  '  not  Ruilty  ;'  therefore,  at  com- 
mon law  the  action  will  not  lie  against  the  carrier's  executors,  hut  an  action  of 
assump^^it  will  lie  against  them  on  the  very  same  cause."  Williams,  Executors. 
6th  cd.,  1598,  citinc;  Cowp.  375.     See  further.  Chapter  XVIII.,  f)Ost. 

(</)  Powell  V.  I.ayton,  2  N.  R.  367,  370.  per  Sir  J.  Mansiiki.d,  C.  J. 

(>■)  Alton  V    Mi.lirnul  I< r,ii   <•„,  ,,,  c.  H..  N.  S.  213  ;  34  L.  J.  292,  C.  P. 


20  PARTIES     TO    ACTIONS. 

plaintitts,  lor  this  simple  reason — because  the  rights 
founded  on  contract  belong  to  the  person  who  stipulated 
for  them.  Here  the  right  to  be  carried  safely  was  stipu- 
lated for  bv  the  servant.  It  was  a  right  acquired  by  him 
by  reason  of  a  bargain  of  the  defendants.  (/)  .  .  . 
This  is  a  case  in  which  there  would  have  been  no  duty 
but  for  the  contract  to  carry  safely  in  consideration  of  a 
ceitain  payment.  The  passenger  purchases  the  duty 
which  the  law  says  arises  out  of  the  contract,  and  has  his 
election  to  sue  upon  the  contract,  or  for  the  breach  of  the 
duty  founded  on  the  contract.  (^)  ....  It  has  been 
strongly,  but  ....  erroneously,  urged,  that  the 
cause  of  action  here  is  founded  on  a  wrong.  The  law 
does  not  so  deal  with  it ;  it  gives  the  right  to  sue  in  form 
either  in  tort  or  contract,  at  the  party's  election."  ih) 

But  though  in  numerous  cases  (?)  actions  for  torts 
founded  on  contract  have  been  considered  as  essentially 
actions  on  contract,  they  have  also  been  treated  as  actions 
for  tort. 

"  Ever  since   Pozzi   v.    Shipton,  {k)  the   action 
[19]      against  common   carriers  on  the  custom  has  been 
considered  an  action  strictly  of  tort."  (/) 

"  It  seems  to  me  "  (it  has  been  said  in  another  case), 
'*  that  the  whole  current  of  authorities,  beginning  with 
Govett  V.  Radnidge,  {in)  and  ending  with  Pozzi  v.  Ship- 
ton,  establish  that  an  action  of  this  sort  "  [i.  e.,  against 
carriers  for  negligence]  "  is  in  substance  not  an  action  on 
contract,  but  an  action  of  tort  against  the  company  as 
carriers."  («)  Hence,  in  the  case  from  which  the  quota- 
tion is  taken,  (<?)  a  servant  was  held  entitled  to  sue  for  the 

(/)  Ibid.,  19  C.  B.,  N.  S.  239,  240,  per  Willes,  J. 

Ig)  Ibid.,  241,  Judgment  of  WiLLES,  J. 

(h)  Ibid.,  240,  per  WiLLES,  J. 

(?)  See,  in  favor  of  this  view,  Marzetti  v.  Williams,  i  B.  &  Ad.  415  ;  Win- 
terbottom  v.  Wright,  10  M.  &  W.  109,  ir  L.  J.  47,  Ex. ;  Toliit  v.  Shenstone,  5 
M.  &  W.  283. 

ik)  8  A.  &  E.  963. 

(/)  Tattan  V.  G.  W.  Rail.  Co.,  29  I..  J.  186,  Q.  B.,  per  Crompt.  n,  J. 

(tn)  3  East,  62. 

(«)  Marshall  v.  York,  Xewcastle  and  Berwick  Rail.  Co.,  11  C.  B.  663,  pe* 
Williams,  J. 

(o\   II  C.  B.  655  ;  21  L.  J.  34,  C.  F. 


DIVISION    OF    ACTIONS.  21 

loss  of  his  luggage,  though  the  contract  for  its  carriage 
was  with  his  master,  and  he,  therefore,  had  the  actioti 
been  held  to  be  on  contract,  could  not  have  sued  ;  (/)  and 
in  a  subsequent  case,  it  is  said  by  Blackburn,  J.,  "  1 
think  that  what  is  said  in  the  case  of  Marshall  v.  York. 
Newcastle  and  BerAvick  Railway  Company  was  quite 
correct,  and  that  the  right  which  a  passenger  by  railway 
has  to  be  carried  safely  does  not  depend  on  his  having 
made  a  contract,  but  that  the  fact  of  his  being  a  passenger 
casts  a  dutv  on  the  company  to  carry  him  safely."  {q) 

The  difference  of  opinion  which  exists  amongst  equally 
high  authorities  is  less  than  it  might  at  first  sight  appear. 
Actions  against  common  carriers  have  been  thought  an 
admitted  exception  to  ordinary  rules,  and  the  matter  in 
dispute  will  generally  be  found  to  be,  not  what  is  the 
true  nature  of  torts  founded  on  contract,  but  whether  in 
a  given  case,  e.  g.,  an  action  against  a  railway  company 
for  negligence,  the  ground  of  the  action  was  in  any  sense 
the  contract. 

In  spite  of  conflicting  decisions,  the  doctrine  laid  [20] 
down  by  Sir  J.  Mansfield,  C.  J.,  is  (it  is  submitted) 
in  theory  correct.  Actions  for  torts  founded  on  contract, 
though  in  form  actions  for  tort,  are  in  reality  actions  for 
breach  of  contract.  They  owe  their  existence  to  the  fact, 
that  for  technical  reasons  (some  of  which  still  exist  (r))  de- 
clarations \vere  often  framed  in  tort  where  the  real  cause 
of  action  was  the  breach  of  a  contract,  {s) 

A  plaintiff  has  often  a  choice  of  suing  either  on  con- 
tract or  for  tort. 

Sometimes  the  act  of  the  defendant  may  amount  at 
once  to  a  breach  of  contract  and  to  a  tort. 

M(.)re  frequently  the  plaintiff's  choice  arises  from  the 
fact  that  a  party  aggrieved  may  treat  what  is  really  a 
wrong  as  a  breach  of  an  ini[»lied   contract,  or  what  is  in 


(p)  Kule    10.      Compare,  as    a;^recing    with     tliis    view,    Martin    v.  Great 
{ndian  Rail.  Co.,  L.  R.  3  Kx.  9  ;  37  L.  J.  27,  Ex. 

{q)  Austin  v.  G.  W.  Kail.  Co.,  L.  R..  2  Q.  IJ.  447  ;  S*"'  I-  J-  202,  Q.  U. 

(r)  See  nitU. 

(s)  lUillcn,  I'lcadings,  3rd  cd.,  273. 


22  PARTIES     TO    ACTIONS. 

reality  a  breach  of  contract  as  a  wrong  founded  on  con- 
tract. 

A  person,  for  example,  whose  goods  have  been  wrong- 
fully sold  may  either  sue  for  the  tort,  in  an  action  ol 
trover,  (/)  or,  if  he  pleases,  claim  the  amount  received  for 
the  sale  as  a  debt  for  money  received  for  his  use ;  and  a 
person  whose  goods  have  not  been  delivered  by  a  carrier 
may  sue  the  carrier  either  for  a  breach  of  the  agreement 
to  deliver,  t.  e.,  on  contract,  or  for  neglect  of  the  duty  to 
carry  the  goods  safely,  z.  e.,  for  tort. 

When  the  act  complained  of  is  one  which  enables  the 
plaintiff  to  sue  either  for  breach  of  contract  or  for  tort,  he 
can  treat  the  same  act  in  one  count  of  the  declaration  as 
a  breach  of  contract  and  in  another  count  as  a  tort. 

The  mode  in  which  an  action  is  brought  can  not  affect 
the  substantial  legal  rights  of  the  parties,  {zi)  but  may 
nevertheless  have  important  effects. 

First.  A  plaintiff  who   treats  a   tort   as   if  it  were  a 

breach  of  contract  exposes  himself  to  the  disadvan- 

[21]      tages  of  suing  on  contract,  e.  £;:,  he  is  liable  to  a 

plea  of  set-off,  (zv)  and  can  not  obtain  costs  {x)  unless 

he  recovers  more  than  ;^2o. 

Secondly.  A  plaintiff  who  treats  a  breach  of  contract 
as  if  it  were  a  wrong,  though  he  may  gain  some  advan- 
tages of  procedure,  e.  g.,  exclude  a  plea  of  set-off,  and 
perhaps  gain  costs  on  a  verdict  for  any  sum  above  £iOy 
(y)  can  not  (it  would  seem)  change  the  substantial  rights 
of  the  parties,  e.  g.,  he  can  not  make  an  infant  or  married 
woman  liable  on  a  contract  by  treating  the  breach  ot 
contract  as  a  tort.  {2) 

While,  in  short,  a  plaintiflf  can,  by  varying  the  mode 
in    which   an   action    is  brought,  affect   points  of  proce- 

{t)  Lythgoe  v.  Vernon,  5  H.  &  N.  180  ;  29  L.  J.  164,  Ex. 

(m)  Alton  V.  Midland  Rail.  Co.,  19  C.  B.,  N.  S.,  241  ;  34  L.  J.  292,  C.  P. 

(w)  See  Leake,  Contracts,  48. 

{x)  Tattan  v.  G.  W.  Rail.  Co.,  29  L.  J,  184,  Q.  B. 

(j)  It  maybe  questioned  whether  this  is  so  under  the  late  Act  (30  &  31 
Vict.  c.  142). 

(2)  Wright  V.  Leonard,  30  L.  J.  365,  C.  P.  :  i  C.  B.,  N.  S.,  258.  See  as  to 
infants.  Chapter  XXIX.  ;  as  to  married  women,  Chapter  XXX. 


DIVISION    OF    ACTIONS.  23 

dure,    he   can   not  affect   the    substantial   rights    of    the 
parties,  {a) 

The  law  as  to  the  plaintiff's  election  is  thus  stated   by 

WiLLES,  J.  {b)  :— 

"  Election,  it  must  be  admitted,  is  purely  technical, 
and  was  intended  to  give  the  party  a  more  convenient 
and  compendious  remedy.  If  traced  to  its  origin,  there 
would  be  found  many  instances  to  prove  that.  I  may 
mention  a  few  of  them.  First,  I  will  start  with  the  doc- 
trine of  implied  promises,  because  whether  the  law  raises 
a  duty  or  implies  a  promise  which  the  parties  did  not 
stipulate  for,  is  all  one.  Take  the  case  of  a  contract  with 
various  stipulations,  as  in  a  building  contract ;  and  take  it 
that  the  contract  is  only  partly  completed,  without  any 
default  on  the  part  of  the  builder.  Certain  of  the  work 
has  been  done  and  certain  materials  supplied  :  the  law 
gives  the  builder  his  election  to  declare  upon  the 
special  contract,  or  he  may  say  that  he  has  done  [22] 
the  work  and  supplied  the  materials,  and  that  the 
defendant  promised  to  pay  him  the  value  on  request. 
That  was  the  state  of  the  law  when  the  case  of  Bretherton 
V.  Wood  (6  J.  B.  Moore,  141  ;  9  Price,  408  ;  3  Brod.  &  B. 
54),  and  the  other  cases  rehed  on,  were  decided.  But  no 
one  would  contend  that  the  change  in  the  mode  of  declar- 
ing would  affect  the  legal  rights  of  the  parties.  That  is 
one  instance  where  an  election  is  given  in  the  mode  of 
procedure.  1  might  travel  through  an  infinite  series  of 
legal  fictions.  Take  the  case  of  a  man  selling  the  goods 
of  another  without  his  authority.  The  law  allows  the 
partv  whose  goods  are  so  sold  to  declare  in  an  action  for 
the  wrongful  conversion,  or  at  his  election,  to  sue  on  the 
implied  promise  to  pay  over  the  proceeds  to  him,  though 
in  truth  there  was  no  such  promise.  These  are  cases  in 
which  the  law  has  invented  fictions  to  give  a  more  con- 

ia)  As  to  this  point,  compare  Alton  v.  Midland  Rail  Co.,  lo  C.  B.,  N.  S., 
i;3,  34  I-.  J.  2g2,  C.  P.;  Marshall  v.  York,  Newcaslle.  and  i'.erwick  Rail.  Co., 
II  C.  B.  655  ;  21  L.  J.  34,  C.  P. ;  and  Martin  v.  Great  Indian  Rail.  Co.,  L.  R. 
»    Ex.  9,  37  L.J.  27.  Ex. 

,^)  Al:on  V.  Midland  Rail.  Co.,  19  C.  B.,  N.  S.,  240,  241. 


24  PART  IRS     TO     ACTIONS. 

vcniont  rcnicdv  to  tlic  part.v  wroiii^cd.  In  the  last  case 
you  have  an  instance  of  an  election  which  is  cloi^ged  in 
this  way  ;  if  the  plaintiff  chooses  to  bring  an  action  for 
money  had  and  received,  he  subjects  himself  to  all  the 
consequences  of  the  defendants  being  let  in  to  plead  a  set- 
off, infancy,  and  the  like." 

Actions  Avere  originally  divided  into  certain  "  kinds," 
or,  as  they  are  called,  "  forms  "  (r)  of  action.  Thus  an 
action  for  a  breach  of  covenant  belongs  to  one  form  {sc. 
covenant),  for  the  breach  of  a  contract  not  under  seal  to 
another  {sc.  assumpsit),  for  an  assault  to  a  third  {sc.  tres- 
pass), and  so  forth. 

The  distinction  between  forms  of  action  used  to  be 
essential,  since  the  form  of  each  action  was  mentioned  in 
the  writ,  and  it  was  necessary  that  all  the  causes  of  action 
for  which  a  plaintiff  sued  in  one  and  the  same  action 
should  belong  to  the  same  form,  e.  g.,  a  declaration  might 
contain  any  number  of  counts  for  different  breaches  of 
covenant,  but  could  not  contain  one  count  for  the  breach 
of  a  covenant  (/.  e.,  a  contract  under  seal),  and 
[23]  another  count  for  the  breach  of  any  contract  not  a 
covenant. 

Now  that  no  form  or  cause  of  action  is  mentioned  in 
the  writ,  id)  and  different  causes  of  action  may  be  com- 
bined in  the  same  declaration,  {e)  forms  of  action  may  be 
considered  practically  abolished.  But  it  is  still  essential, 
with  a  view  to  understand  the  rules  as  to  parties,  to  bear 
in  mind  the  distinction  between  different  forms. 

These  forms  may  be  considered  (/)  as  subdivisions  or 
species  of  the  two  classes  of  actions  on  contract  and  act- 
ions for  tort  respectively. 


(<•)  See  ante. 

(d)  C.  L.  P.  Act,  1S52,  s.  3. 

ie)  Ibid.,  s.  41. 

(/)  They  may  be  so  considered  for  convenience  ;  but  tlie  division  o^  actions 
into  forms  existing  earlier  than,  and  independently  of  the  division  into  actiors 
ex  contractu  and  actions  ex  delicto.  Case  origina-lly  included  assumpsit,  trover 
was  considered  a  species  of  case,  and  detinue  was  held  for  some  purposes  an 
action  ex  contractu.  3  Steph.  Com.,  6th  ed.,  385  n.  (c).  Danby  v.  Lamb,  11  C 
B.,  N.  S.,  427. 


DIVISION     OF    ACTIONS.  25 


The  forms  of  actions  are  • — 

1.  Debt  '] 

2.  Covenant  Y      on  contract 

3.  Assumpsit  J 

4.  Trespass 

5.  Trespass  on  the  case 

6.  Trover 
»    7.  Detinue 

8.  Replevin 


for  tort. 


Of  the  above  eight  forms  three  belong  to  actions  ex 
contractu,  five  to  actions  ex  delicto. 

"  Debt"  lies  where  a  person  claims  the  recovery  of  a 
debt,  i.  e.,  a.  liquidated  or  certain  sum  of  money  alleged  to 
be  due  to  him,  and  is  generally  founded  on  some  contract 
alleged  to  have  taken  place  between  the  parties,  or  on 
some  matter  of  fact  from  which  the  law  will  imply  a  con- 
tract between  them,  (^) 

"Covenant"  lies  where  a  party  claims  damages     [24J 
for  a  breach  of  covenant,  /.  e.,  of  a  promise  under 
seal,  {/i) 

"  Assumpsit  "  lies  where  a  party  claims  damages  for  a 
breach  of  a  simple  contract,  ?.  e.,  a  promise  not  under 
seal. 

"  Trespass  "  lies  where  a  party  claims  damages  for  a 
trespass  committed  upon  him,  u  e.,  for  an  injury  of  a 
direct  and  immediate  kind  committed  on  the  person,  or 
tangible  and  corporeal  property  of  the  plaintiff. 

"  Case  "  (or  "  Trespass  on  the  case  ")  lies  where  a 
party  claims  damages  for  any  wrong  not  included  under 
the  head  of  trespass. 

Case  includes  under  it  the  greater  number  of  torts, 
€.  g.,  torts  arising  from  negligence,  fraud,  is.c. 

ig)  Stephen,  Ple.nHng,  6tli  ed.,  l6.  Assumpsit  could  never  be  maint.iincd 
where  covenant  could,  and  vice  versa  ;  but  debt  could  sometimes  be  brout^ht 
where  covenant  could  also  be  brou^^ht.  Assumpsit  will  lie  Ihout^h  debt  lie* 
also.     Com.  Dig.,  Action  ujion  the  Case  upon  assumpsit,  C, 

(/4)  See  previous  note. 


20  PARTIES     TO    ACTJONS. 

As  distinguished  tVoin  trespass  it  lies  for  an  indirect, 
as  contrasted  with  a  direct  and  immediate  injury,  {i)  But 
the  distinction  between  the  one  Ibrm  and  the  other  is  in 
many  cases  very  fine,  and  there  are  instances  wherein 
both  or  either  trespass  or  case  will  lie.  (j) 

"  Trover"  lies  where  the  plaintiff  sues  for  damages  for 
an  interference  with  his  right  to  possession  of  specific 
goods  and  chattels.  Such  interference  is  technically 
called  "  conversion." 

"  Detinue  "  lies  where  the  plaintiff  claims  to  recover 
specific  goods  or  chattels  wrongfully  detained  by  the  de- 
fendant. 

This  action  differs  in  practice  little  from  trover,  {k) 

The  chief  differences  are,  that  a  plaintiff  can  in  an 
action  for  detinue  obtain  the  return  of  the  goods, 
(_25  I  (/)  and  that  the  gist  of  detinue  is  the  wrongful  de- 
tainer of  the  goods,  {in)  and  of  trover  the  wrongful 
dealing  with  them. 

"  Replevin  "  lies  where  goods  have  been  wrongfully 
distrained,  and  occasionally  where  they  have  been  wrong- 
fully taken,  though  not  as  a  distress,  {n) 

(B)  Local  and  Transitory  Actions. 

Actions  are  further  divided  uito  "  local  "  actions  and 
"  transitory  "  actions. 

A  local  action  is  one  which  necessarily  depends  on 
local  matters,  such   as    the    breaking   into  a  house,  the 

{i)  Scott  V.  Shepherd,  i  Smith  L.  C,  6th  ed.,  419 

(/)  Ibid.,  423,  and  general  notes  to  this  case.  Case  has  been  defined  as  an 
action  for  any  wrong  or  cause  of  complaint  to  which  covenant  or  trespass  do 
not  apply.  Stephen,  Pleading,  6th  ed.,  617.  This  definition  must  apply  to  case 
in  its  original  sense,  in  which  it  included  asisumpsit. 

{k)  Mockford  v.  Taylor.  19  C.  B.,  N.  S.,  209  ;  34  L.  J.  352,  C.  P 

(/)  C.  L.  P.  Act,  1854,  s.  78  ;  and  Day,  Procedure  Acts,  3rd  ed.,  773. 

(w)  Selwyn,  N.  P.,  13th  ed.;  583. 

(«)  Mellor  V.  Leather,  i  E.  &  B.  619,  22  L.  J.  76,  M.  C. ;  Mennie  v.  Blake. 
25  L.  J.  399,  Q.  B.  The  action  of  ejectment  is  treated  of  separately.  The 
action  of  account  is  so  rarely  brought  as  to  be  practically  obsolete.  See  Selwyn 
N.  P.,  Account,  13th  ed.,  i.  It  is  not  the  aim  of  this  treatise  to  treat  of  the 
action  of  writ  of  right  of  dower,  dower,  and  quare  impcdit. 


DIVISION    OF    ACTIONS.  27 

diversion   of   a    stream,    and   generally   injuries   to   rea. 
property  which  must  happen  in  a  particular  place. 

A  transitory  action  is  one  which  depends  on  transitory 
matters,  such  as  the  making  and  breach  of  a  contract,  or 
an  assault  to  the  person,  which  might  happen  as  well  in 
one  place  as  in  another.  {0) 

As  a  general  rule,  actions  for  wrongs  in  respect  of 
land  are  local ;  and  other  actions,  e.  g.,  for  breach  of  con- 
tract or  for  wrongs  not  connected  with  real  property,  are 
transitory. 

A  local  action  must  be  tried  in  the  county  m  which 
the  cause  of  action  arose. 

A  transitory  action  may  be  tried  in  any  county  [26J 
whatever  at  the  option  of  the  plaintiff. 

*Hence  a  local  action  can  not  be  tried  in  our  courts 
where  the  matters  complained  of  took  place  beyond  their 
jurisdiction,  i.  e.,  beyond  the  limits  of  England,  Wales, 
and  Berwick-upon-Tweed.  (/) 

A  transitory  action  can  be  tried  in  our  courts  whether 
the  cause  of  action  arose  within  or  without  the  jurisdic- 
tion, {q) 

{o)  Mostyn  v.  Fabrigas,  notes,  I  Smith  L.  C,  6th  ed.,  649  ;  Bullen,  Pleadings, 
jrd  ed.,  2. 

More  accurately,  perhaps,  a  local  action  is  one  which  arises  from  some  in- 
fringement of  a  right  which  must,  if  committed  at  all,  be  comitted  at  a  particu- 
lar place.  A  transitory  action  is  one  which  arises  from  some  infringement 
of  a  right  which  may,  from  its  nature,  be  committed  at  any  place  whatever. 
See,  as  to  the  effect  of  this  distinction,  Chapter  III. 

(p)  See  further, /cj'/. 

{q)  Actions  for  damages  and  actions  for  debt.  Another  way  of  regarding 
actions   is  as  actions  for  damages  and  actions  for  debt. 

Under  the  head  of  actions  for  damages  come  all  actions  for  tort,  and  all  those 
actions  on  contract  in  which  anything  is  claimed  beyond  a  fi.xed  and  definite  sum 
of  money. 

It  is  plain,  that  in  an  action  for  wrong,  what  is  sought  to  be  recovered  is  an 
indefinite  sum,  viz.,  such  damages  as  the  jury  think  fair  compensation  to  the 
party  aggrieved,  ^.f.,  assaulted  or  slandered.  It  is  equally  plain  that  in  some 
actions  for  breach  of  contract,  what  is  sought  to  be  recovered  is  a  definite  sum 
or  debt,  as,  for  example,  where  A.  lends  B.  £20,  and  demands,  simply  and  solely, 
its  repayment ;  whilst,  in  others,  what  is  sought  for  is  an  indefinite  sum  or 
damages,  e.g.,  where  an  action  is  brought  for  the  non-delivery  of  goods,  where 
the  plaintiff  of  course  seeks  compensation  for  tiie  damage  which  he  has  suffered 
by  the  non-delivery  of  the  good^. 

It  is  sometimes,  however,  not  easy  to  decide  at  first  siglit  whether  an  action 


28  PARTIES     TO    ACTIONS. 

is  brought  to  recover  a  liquidalcil  ilemaiul,  i.  <r.,  a  debt,  or  an  unliquulalcd  de- 
rnaiuU  »'.  e.,  damages.  Thus,  an  action  for  a  sum  due  on  a  bill  of  exchange  is  one 
for  a  liquidated  demand  or  debt  ;  but  if  there  be  added  to  this  demand  a  further 
claim  for  the  expense  of  noting,  the  action  becomes  an  action  for  an  unliquida- 
ted demand  or  damages  (Rogers  v.  Hunt,  24  L.  J.  23,  Ex.  ;  lo  Ex.  474). 

The  following,  for  example,  are  all  claims  for  debts  or  liquidated  damages, 
viz ; — 

Claims  under  the  common  indebitatus  counts,  e.g.,  for  money  paid  or  money 
lent. 

Claims  for  a  sum  certain  due  on  a  bond  or  covenant. 

Claims  for  liquidated  damages  under  a  covenant  or  agreement. 

The  following,  on  the  other  hand,  are  claims  for  unliquidated  damages 
viz.  : — 

A  claim  for  noting  a  bill  of  exchange  (Rogers  v.  Hunt,  24  L.  J.  23,  Ex.  ;  lO 
Ex.  474]. 

Claims  under  a  guarantee  (Williams  v.  Flight,  2  Dowl.,  N.  S.,  ii  ;  Atwool  v. 
Atwool,  2  E.  &  B.  23  ;  22  L.  J.  2S7,  Q.  B.     But  compare  Brown  v.  Tibbets,  31 

L.  J.  206,  C.  P.  ;  II  C.  B.,  N.  S.  855). 
[27]  A  claim  for  not  accepting  a  bill  of  exchange  (Hutchinson  v.  Reed,  2 

Camp.  229). 

A  claim  for  damage  from  delaying  a  ship  (Seeger  v.  Duthie,  8  C.  B.,  N.,  S., 
72  ;  30  L.  J.  65,  C.  P.). 

Claims  upon  a  non-adjusted  policy  (Beckwith  v.  Bullen,  8  E.  &  B.  6S3;  27 
L.  J.  163.  Q.  B.). 

A  claim  for  the  value  of  goods  lost  (Meyer  v.  Dresser,  33  L.  J.  289,  C.  P., 
t6  C.  B.,  N.  S.,  646). 

The  test  by  which  to  ascertain  the  nature  of  any  claim  is  to  consider  what 
is  the  point  to  be  decided  by  the  jury.  If  all  they  have  to  decide  is,  first,  was 
there  a  contract  between  the  plaintiff  and  the  defendant?  secondly,  what  was 
il^e  contract  between  the  plaintiff  and  the  defendant?  and,  thirdly,  has  it  been 
broken  ?  then  the  action  is  brought  for  a  liquidated  demand  or  debt.  Thus, 
whe'-e  the  plnintiff  claims  the  price  of  goods  sold,  the  sole  questions  for  the 
juiy  are — first,  did  the  defendant  buy  the  goods  ?  secondly,  at  what  price  were 
the  goods  sold,  i.e.,  what  was  the  contract?  and,  thirdly,  have  they  been  paid 
for  or  not,  i.e.,  has  the  contract  been  broken  ?  The  action  !s,  therefore,  for  a 
liquidated  demand  or  debt. 

If  the  jury  would  have  to  decide,  in  addition  to  the  three  points  already 
mentioned,  the  following  fourth  point,  i.  e.,  what  damage  has  the  plaintiff 
suffered  by  the  breach  of  contract  ?  then  the  action  is  one  for  an  unliquidated 
demand  or  damages.  Thus,  where  the  action  is  for  the  non-delivery  of  goods, 
the  jury  must  consider — first,  was  there  a  contract  ?  secondly,  what  was  the 
contract?  thirdly,  were  the  goods  delivered  or  not,  i.  e.,  was  the  contract 
broken?  and  fourthly,  what  damage  did  the  plaintiff  suffer  by  the  breach? 
(Rogers  v.  Hunt,  24  L.  J.  33,  Ex.,  and  10  Ex.,  474;  Ilodsall  v.  Baxter,  28  L. 
J.  61,  Q.  B.  ;  Hall  v.  Scotson,  23  L.  J.  85,  Ex.,  9  Exch.  ^38).  The  action  is, 
therefore,  for  an  unliquidated  demand  or  damages. 

Several  results  of  practical  importance  depend  upon  the  distinction  between 
actions  for  debt  and  actions  for  damages.  The  only  result  which  need  be 
noticed  here  is  its  effects  upon  the  right  of  "  set-off." 

If  X.  is  indebted  to  A.  in  £10,  and  A.  is  indebted  lo  X.  in  £10,  or  more, 
and  A.  sues  X.  for  the  £10  which  he  owes  him,  X.  can  set  off  the  debt  which 
A.  owes  him  against    the  debt  \\hich  he  owes   A.  ;    and  can,  by  so  doing,  ac- 


DIVISION    OF    ACTIONS.  2g 

cording  to  the  imount  of  the  respective  deljts,  either  defend  himself  from  an 
action  at  the  suit  of  A.,  or  else  reduce  the  amount  recovered  by  A. 

But  it  is  a  rule  of  law,  that  only  debts  (/.  e.,  liquidated  claims)  can  be  set-off 
against  debts. 

Neither  can  one  claim  for  unliquidated  damages  be  set-off  against  another, 
oor  can  a  debt  be  set-off  against  a  claim  for  unliquidated  damages. 


30  PARTIES     TO    ACTIONS 


CHAPTER  III. 


GENERAL  RULES  APPLICABLE  TO    ALL  ACTK  *NSs 

Rule  2. — No  action   can  be  brought  except  for 
the  infringement  of  a  right. 

As  the  ground  of  an  action  is  always  an  interference 
with  some  right  of  the  person  aggrieved,  every  plaintiff 
must,  in  order  to  support  his  case,  prove  that  his  rights 
have  been  interfered  with,  by  showing  that  the  defendant 
has  by  his  acts  or  omissions  either  broken  a  contract 
made  with  the  plaintiff,  /.  e.,  violated  a  right  which  the 
plaintiff  had  acquired  by  agreement  with  the  defendant, 
or  interfered  with  some  right  of  the  plaintiff,  existing  in- 
dependently of  any  contract. 

No  man  can  support  an  action  simply  on  the  ground 
that  he  suffers  damage  from  another's  conduct.  It  con- 
stantly happens  that  acts  which  are  popularly  called  in- 
jurious, because  they  occasion  damage  to  a  particular 
person,  do  not  enable  that  person  to  sue,  because  they  do 
not  amount  to  an  interference  with  his  rights,  and  do  not, 
therefore,  constitute  what  in  the  legal  sense  of  the  term  is 
an  "  injury."  (a)  On  the  other  hand,  when  a  man  can  sue 
because  he  suffers  a  damage,  the  cause  of  action  is  not, 
strictly  speaking,  the  damage,  but  the  interference  with 

his  right.     This  is  expressed  in  technical  language 
[29]      by  the  maxim,  that  "  damage  without  injury  is  never 

a  cause  of  action." 

(li)  The  word  "  injury  "  has  at  least  three  senses.  It  means  in  common 
parlance  any  damage  done  by  one  person  to  another.  It  means  in  legal  lan- 
guage either  any  interference  with,  or  infringement  upon,  a  right  of  any  des- 
cription -rthatever.  or,  secondly,  an  interference  with  a  particular  class  of  rights 
which  exist  independently  of  a  contract.  In  its  last  sense  the  word  is  synony- 
mous with  a  wrong  or  a  tort. 


GENERAL      RULES.  31 

The  rule  itself  is  perfectly  clear,  and  needs  to  be  borne 
in  mind,  not  only  in  determining  whether  a  given  person 
has  any  right  of  action,  but  also,  frequently,  in  ascertain- 
ing by  which  of  two  persons  a  wrong-doer  ought  to  be 
sued ;  since  it  often  happens  that  a  wrongful  act,  which 
causes  substantial  damage  to  A.,  itifringes  upon  the  rights, 
not  of  A.,  but  of  B.,  who  perhaps  may  be  little  damaged. 
Under  such  circumstances  an  action  in  the  name  of  A. 
will  fail,  whilst  an  action  in  the  name  of  B,  will  succeed,  {p) 

It  is  often  difficult  to  decide  whether  a  person  who 
has  been  damaged  has  or  has  not  suffered  an  injury.  The 
nature  and  application  of  the  rule  are  best  seen  from 
examples. 

Many  kinds  of  damage  are  clearly  not  injurious. 

"  If  a  school  be  set  up  in  the  same  town  where  an 
ancient  school  has  been  time  out  of  mind,  by  which  the 
old  school  receives  dam  ige,  yet  no  action  lies.  So,  if  I 
retain  a  master  in  my  house  to  instruct  my  children, 
though  it  may  be  to  the  damage  of  the  common  master, 
yet  no  action  lies. 

"  If  I  throw  out  windows  in  my  house,  which  overlook 
my  neighbor's  house,  and  break  in  upon  that  privacy 
which  he  before  enjoyed,  no  action  lies."  {c)  So,  no  one 
can  sue  for  mere  damage  to  the  prospect  of  view  from  his 
dwelling,  {d)  or  for  an  interference  with  the  current  of  air 
to  his  mill,  ie)  Nor  has  any  one  an  absolute  right  to  sup- 
port from  a  house  adjoining  his  own ;  (/)  though  the 
question  what  right,  if  any,  the  owner  of  a  house 
has  to  support  from  the  adjoining  houses  is  not  [30] 
completely  settled. 

,  It  is,  again,  a  damage  for  any  one  to  be  made  defendant 
in  an  action  without  reason.     Yet,  if  X.,  mistaking  A.  for 

{b)  See.  e.  g..  Mill  v.  Tiipper,  2  H.  &  C.  121,  32  L.  J.  217,  Ex.,  noticed 
post.  See  Chapter  XIX.  for  cases  where  an  action  of  trespass  should  be 
brought  in  the  name  of  a  tenant,  though  really  on  behalf  of  a  landlord. 

{c)  I'lacon,  Abr.,  Actions,  H. 

{d )  Aldred's  case,  g  Coke,  5S  b. 

{f)  Webb  V.  Bird,  10  C.  B.,  N.  S.,  208  ;  30  L.  J.  28^,  C.  1'.  ;  10  C.  11..  N.  S 
841  ;  31  F-.  J.  245.  C.  W,  Ex.  Ch. 

(/)  .Solomon  V.  Vintners'  Co.,  4  II.  &  N.  5S5  ;  28   I..    J.  370.  Ex. 


32  PARTIES     TO    ACTIONS: 

B.,  serves  a  writ  upon  him,  ami  follows  up  the  action 
against  him,  A.,  though  he  has  a  good  defense,  and  can 
recover  costs,  has  no  rcmcdv  against  X.  for  the  incon- 
venience to  which  he  has  been  put,  provided  the  proceed- 
ings have  been  adopted  purely  through  mistake ;  for 
though  damage  may  have  resulted  to  him,  it  is  damnum 
absque  injuria,  and  no  action  lies.  Indeed,  every  defend- 
ant against  wh(3m  an  action  is  unnecessarily  brought, 
experiences  some  damage  or  inconvenience  beyond  what 
costs  compensate  him  for,  and  3'et  has  no  remedy,  {g) 

It  can  not,  however,  be  absolutely  laid  down  that  a 
person  may  never  sue  another  for  having  brought  an 
action  against  him.  "  That  an  action  may  be  brought 
under  such  circumstances  as  to  render  it  morally  wrong 
and  injurious  in  fact  is  certain,  though  the  authorities 
leave  it  in  doubt  wnethcr  under  any  circumstances  the 
person  so  sued  can  recover  damages  for  the  vexation  and 
annoyance  caused  to  him  by  the  false  suit,"  {h)  i.  e., 
whether  he  can  treat  it  as  an  injury. 

Defamatory  statements  are  in  general  actionable  when 
they  cause  damage,  and  are  frequently  so  when  they  do 
not  cause  any  damage.  Yet,  even  when  most  damaging, 
they  are  under  many  circumstances  not  to  be  esteemed 
injuries. 

Thus,  no  true  assertion,  however  damaging  or  defama- 
tory in  its  character,  can,  whether  made  in  w"riting  or  by 
word  of  mouth,  give  a  cause  of  action  (z)  to  the  per- 
[31]  son  damaged ;  since  the  publisher  of  the  libel,  or 
the  utterer  of  the  slander,  can  always  defend  himself 
in  an  action  at  laAv  by  proving  the  truth  of  the  assertion 
complained  of. 

Nor  are  defamatory  statements,  even  when  untrue, 
always  actionable,  though  causing  damage  to  the  person 
of  whom  they  are  written  or  spoken.     For  such  state 


(,f )  See  Davies  v.  Jenkins,  ii  M.  &  W.  756,  judgment  of  RoLFE,  B. 

{h)  Wren  v.  Weild,  L.  R.  4,  Q.  B.  730,  735,  judgment  of  Blackbu  in,  J. 
The  authorities  are  reviewed  in  this  judgment. 

{i)  It  may,  however,  under  some  circumstances  be  tlie  subject  of  m  in- 
dictment. 


GENERAL      RULES.  33 

merits  are  often  privileged,  /.  e.,  made  under  circum- 
stances such  as  to  exempt  the  person  making  them  from 
liability  to  be  sued.  They  may  be  privileged  on  various 
grounds,  as  for  instance,  that  they  are  made  bona  fide  in 
the  assertion  of  a  right,  or  the  performance  of  a  duty  ;  {k) 
that  they  are  fair  criticisms  on  matters  of  public  interest ; 
(/)  that  they  are  words  pertinent  to  the  matter  in  issue, 
spoken  by  an  attorney  or  advocate  in  the  course  of  a  judi- 
cial proceeding,  {m)  or  by  a  witness  in  giving  his  evidence, 
or  are  a  fair  report  of  proceedings  in  a  trial,  or  of  a  debate 
in  parliament.  {0)  The  point  to  be  here  noticed  is,  that 
privileged  statements,  whenever  they  cause  damage, 
afford  an  example  of  damage  without  injury.  (/) ' 

(k)  Whiteley  v.  Adams,  "=;  C.  B.,  N.  S.,  392  ;  33  L.  J.  89,  C.  P. ;  Cowles  v. 
Potts,  34  L.  J.  247,  Q.  B. 

(/)  Campbell  v.  Spottiswoode,  32  L.  J.  185,  Q.  B.  ;  3  B.  &  S.  769. 

{m)  Mackay  v.  Ford,  5  H.  &  N.  792  ;  29  L.  J.  404,  Ex.  ;  Revis  v.  Smith,  18 
C.  B.  129  ;  25  L.  J.  195,  C.  B.  ;  Henderson  v.  Broomhead,  4  H.  &  N.  569  ;  28 
L.  J.  360,  Ex. 

(p)  Wason  V.  Walter,  L.  R.  4,  Q.  B.  73  ;  38  L.  J.  34,  Q.  B. 

(/)  See  notes  to  Ashhy  v.  White,  I  Smith,  L.  C,  6th  ed.,  258,  259; 
Dawkins  v.  Lord  Paget,  L.  R.  5,  Q.  B.  94. 

I.  The  liability  of  a  corporation  defendants    pleaded    the    general 

as  party  defendant  in  an  action  for  issue.     On  the  trial  of  the  cause,  it 

slander,  and  the  application  of  the  appeared  that,  in    1854,   the  presi- 

doctrines  of  privileged  communica-  dent  and  directors,  then  in  charge 

lions  to  such  party,  are  well  stated  of  the  affairs  of  the  defendants,  in- 

by  Mr.  Justice  Campbell,  in  Phila-  stituted  an  inquiry  into  the  adinin- 

delphia,  &c,,  R.  R.  Co.  v.  Quigley,  istration    and    management    of    a 

21  How.  202,  as  follows:  person  who  had  been  the  superin- 

"  The  plaintiff,  Quigley,  a  citizen  tendent  of  their  railroad  for  ten 
of  Delaware,  complained  of  the  de-  years.  Among  other  subjects,  the 
fendants  '  a  body  corporate  in  the  nature  of  his  connection  and  deal- 
state  of  Maryland,  by  a  law  of  the  ings  with  the  plaintiff,  who  had 
general  assembly  of  Maryland,  for  likewise  been  in  the  service  of  the 
the  publication  of  a  libel  by  them,  corporation  as  '  general  foreman  of 
in  which  his  capacity  and  skill  as  a  all  their  carpenters,'  engaged  the 
mechanic  and  builder  of  depots,  attention  of  the  committee  of  inves- 
bridges,  station-houses,   and  other  ligation, 

structures   for   railroad    companies  "The  president  of  the  company, 

had   been  falsely  and  maliciously  who  conducted  this  inquiry  before 

disparaged  and  undervalued.    The  this  committee  on  behalf  of  the  cor- 
8 


34 


PARTIES     TO    ACTIONS. 


In  the  forci;()in<;-  instances  the  person  damaged  has 
clearly  not  been  injured,  i.  c,  has  not  suffered  an  inter- 
icrencc  with  liis    rijj^hts.     The   following  examples  illus- 


poration,  seems  to  have  been  con- 
vinced that  the  superintendent  had 
exhibited  partiahty  for  the  plaintiff, 
and  had  allowed  him  extravagant 
compensation  for  service,  and  the 
privilege  of  free  transit  over  the 
road  for  himself,  his  wc-kmen,  and 
freight,  to  the  detriment  of  the  com- 
pany, and  in  breach  of  his  duty  as 
supermtendent.  The  superintend- 
ent defended  himself  against  these 
and  other  imputations,  and  pro- 
duced testimony  to  the  skill  and 
fidelity  of  the  plaintiff  while  in  the 
service  of  the  company  ;  also,  to  the 
value  of  his  services,  and  to  the 
effect  that  no  unusual  or  improper 
favor  had  been  extended  to  him. 
The  president  of  the  company,  in 
the  course  of  the  investigation,  ad- 
dressed a  letter  to  an  architect,  who 
had  some  acquaintance  with  the 
plaintiff,  to  request  his  opinion  of 
his  skill  as  a  mechanic,  and  whether 
the  services  of  the  plaintiff  could 
have  had  any  peculiar  value  to  a 
railroad  company.  The  reply  of 
this  architect  was  very  pointed  and 
depreciative  of  the  plaintiff,  affirm- 
ing that  '  he  was  not  entitled  to 
rank  as  a  third-rate  workman,'  and 
'  was  unable  to  make  the  simplest 
geometrical  calculations.'  All  the 
testimony  collected  by  the  com- 
mittee, as  produced  by  the  superin- 
tendent, was  carefully  reduced  to 
writing,  and  printed ;  first,  for  the 
use  of  the  president  and  directors, 
and  afterwards  was  submitted  to  the 
company,  at  their  meeting,  on  the 


8th  of  January,  1855,  with  a  report, 
which  exonerated  in  a  great  meas- 
ure the  superintendent  from  any 
malpractice  in  consequence  of  his 
relations  with  the  plaintiff.  The 
investigation  was  searching,  and 
testimony,  which,  with  the  report 
of  the  committee,  fills  two  printed 
volumes,  was  submitted  to  the  com- 
pany. The  letter  of  the  architect, 
in  answer  to  the  letter  of  the  presi- 
dent, is  printed  in  one  of  these 
volumes,  and  this  publication  is  the 
libel  complained  of.  Several  of  the 
directors  testify  that  they  were  not 
aware  of  the  publication,  and  evi- 
dence was  adduced  that  the  plain- 
tiff had  declared  that  the  investiga- 
tion had  resulted  in  increasing  his 
business.  A  verdict  was  returned 
in  favor  of  the  plaintiff.  The  de- 
fendants are  a  company  incorpor- 
ated by  the  legislatures  of  Delaware 
and  Pennsylvania,  as  well  as  of 
Maryland,  to  construct  a  railroad 
to  connect  the  three  cities  which 
contribute  to  form  its  name,  and  a 
portion  of  their  directors  and  stock- 
holders are  citizens  of  Delaware. 
"The  defendants  contend  that 
they  are  not  liable  to  be  sued  in 
this  action  ;  that  theirs  is  a  railroad 
corporation,  with  defined  and  limi- 
ted faculties  and  powers,  and  having 
only  such  incidental  authority  as  is 
necessary  to  the  full  exercise  of  the 
faculties  and  powers  granted  by 
their  charter ;  that,  being  a  mere 
legal  entity,  they  are  incapable  of 
malice,  and  that  malice  is  a  neces- 


GENERA  L    R  ULES. 


35 


trate  the  difficulty  which  may  arise  in  determining 
whether  a  person  damaged  has  or  has  not  been  injured 
A.,  the  plaintiff,  was   the   lessee  of  mines,   the  defendants 


sary  ingredient  in  a  libel ;  that  this 
action  should  have  been  instituted 
against  the  natural  persons  who 
were  concerned  in  the  publication 
of  the  libel.  To  support  this  argu- 
ment, we  should  be  required  to 
concede  that  a  corporate  body 
could  only  act  within  the  limits  and 
according  to  the  faculties  deter- 
mined by  the  act  of  incorporation, 
and  therefore  th  it  no  crime  or  of- 
fence can  be  imputed  to  it.  That 
although  illegal  acts  might  be  com- 
mitted for  the  benefit  or  within  the 
service  of  the  corporation,  and  to 
accompli/h  objects  for  which  it  was 
created  by  the  direction  of  their 
dominant  body,  that  such  acts,  not 
being  contemplated  by  the  charter, 
must  be  referred  to  the  rational 
and  sensible  agents  who  performed 
them,  and  the  whole  responsibility 
must  be  limited  to  those  agents, 
and  we  should  be  forced,  as  a  legiti- 
mate consequence,  to  conclude  that 
no  action  ex  delicto  or  indictment 
will  lie  against  a  corporation  for  any 
misfeasance.  But  this  conclusion 
would  be  entirely  inconsistent  with 
the  legislation  and  jurisprudence  of 
tlie  states  of  the  Union  relative  to 
these  artificial  persons.  Legisla- 
tion has  encouraged  their  organiza- 
tion, as  they  concentrate  and  em- 
ploy the  intelligence,  energy,  and 
capital  of  society,  for  the  develop- 
ment of  enterprises  of  public  utility. 
There  is  scarcely  an  object  of  gen- 
eral interest  for  which  some  asso- 
ciation lias  not  been  formed,  and 


there  are  institutions  whose  mem- 
bers are  found  in  every  part  of  the 
Union,  who  contribute  their  efforts 
to  the  common  object.  To  enable 
impersonal  beings — mere  legal  en- 
tities, which  exist  only  in  contem- 
plation of  law — to  perform  corporal 
acts,  or  deal  with  personal  agents, 
the  principle  of  representation  has 
been  adopted  as  a  part  of  their 
constitution.  The  powers  of  the 
corporation  are  placed  in  the  hands 
of  a  governing  body  selected  by  the 
members,  who  mauage  its  affairs, 
and  who  appoint  the  agents  that 
exercise  its  faculties  for  the  accom- 
plishment of  the  object  of  its  being. 
But  these  agents  may  infringe  the 
rights  of  persons  who  are  uncon- 
nected with  the  corporation,  or  who 
are  brought  into  relations  of  busi- 
ness or  intercourse  with  it.  As  a 
necessary  correlative  to  the  princi- 
ple of  the  exercise  of  corporate 
powers  and  faculties  by  legal  rep- 
resentatives, is  the  recognition  of  a 
corporate  responsibility  for  the  acts 
of  those  representatives. 

"  With  much  wariness,  and  after 
close  and  exact  scrutiny  into  the 
nature  of  their  constitution,  have 
the  judicial  tribunals  determined 
the  legal  relations  which  are  estab- 
lished for  the  corporation  by  their 
governing  body,  and  their  agents, 
with  the  natural  persons  with  whom 
they  are  brought  into  contact  or 
collision.  The  result  of  the  cases 
is,  that  for  acts  done  by  the  agents 
of  a  corporation,  either  in  contractu 


^t> 


PA  K  Tins     TO    A  CTfONS. 


X.   and   Y.  were   the  (uvncrs  ot  a  mill  standi^ig  on   land 

adjoining  that  under  wiuch  the  mines  were  worked. 

[32]      Defendants   employed    C()nn)ctcnt  persons  to  Con- 


or in  delicto,  in  the  course  of  its 
business,  and  of  their  employment, 
the  corporation  is  responsible,  as  an 
individual  is  responsible  under 
similar  circumstances.  At  a  very 
e  irly  period  it  was  decided  in  Great 
Britain,  as  well  as  in  the  United 
States,  that  actions  mi<^ht  be  main- 
tained against  corporations  for 
torts ;  and  instances  may  be  found 
in  the  judicial  annals  of  both  coun- 
tries of  suits  for  torts  arising  from 
the  acts  of  their  agents,  of  nearly 
evrry  variety.     *    *    * 

"  It  would  be  difficult  to  furnish  a 
reasor^  for  the  liability  of  a  corpora- 
tion for  a  fraud,  under  such  circum- 
stances, that  would  not  apply  to 
sustain  an  action  for  the  publication 
of  a  libel.  The  defendants  are  a 
corporation,  having  a  large  capital 
distributed  among  several  hundreds 
of  persons.  Their  railroad  con- 
nects large  cities,  and  passes 
through  a  fertile  district.  Their 
business  brings  them  in  competi- 
tion with  companies  and  individuals 
concerned  in  the  business  of  trans- 
portation. They  have  a  numerous 
body  of  officers,  agents,  and  ser- 
vants, for  whose  fidelity  and  skill 
they  are  responsible,  and  on  whose 
care  the  success  of  their  business 
depends.  The  stock  of  the  com- 
pany is  a  vendible  security,  and  the 
community  expects  statements  of 
its  condition  and  management. 
There  is  no  doubt  that  it  was  the 
duty  of  the  president  and  directors 
to  investigate  the  conduct  of  their 


officers  and  agents,  and  to  report 
the  result  of  that  investigation  to 
the  stockholders,  and  that  a  publi- 
cation of  the  evidence  and  report 
is  within  the  scope  of  the  powers 
of  the  corporation." 

"But  the  publication  must  be 
made  under  all  the  conditions  and 
i-esponsibilities  that  attach  to  indi- 
viduals under  such  circumstances. 
The  Court  of  Queen's  Bench,  in 
Whitcfield  v.  South  East.  R.  R.  Co., 
98  Eng.  C  L.  (May,  1858,)  say  :  '  If 
we  yield  to  the  authorities  which  say 
that,  in  an  action  for  defamation, 
malice  must  be  alleged,  notwith- 
standing authorities  to  the  contrary, 
this  allegation  may  be  proved  by 
showing  that  the  publication  of  the 
libel  took  place  by  order  of  the  de- 
fendants, and  was  therefore  wrong- 
ful, although  the  defendants  had  no 
ill  will  to  the  plaintiffs,  and  did  not 
mean  to  injure  them.'  And  the 
court  concluded  :  '  That  for  what  is 
done  by  the  authority  of  a  corpora- 
tion aggregate,  that  a  corporation 
ought  as  such  to  be  liable,  as  well 
as  the  individuals  who  compose  it.' 
The  question  arises,  whether  the 
publication  is  excused  by  the  rela- 
tions of  the  president  and  directors, 
as  a  committee  from  their  board,  to 
the  corporation  itself.  It  cannot  be 
denied  that  the  inquiries  directed 
by  those  officers  were  within  the 
scope  of  their  power,  and  in  the 
performance  of  a  moral  and  legal 
duty,  and  that  the  communication 
to  their  constituents  of  the  evidence 


GENERAL      RULES. 


37 


struct  a  reservoir.  A.  had  worked  his  mines  to  a  spot 
where  there  were  certain  passages  of  disused  mines, 
which  communicated  with  shafts  which  led    to  the  land 


collected  by  them,  and  their  con- 
clusions upon  the  evidence,  was  a 
privileged  communication  in  the 
absence  of  any  malice  or  bad  faith. 
But  the  privilege  of  the  officers  of 
the  corporation  as  individuals,  or 
of  the  corporate  body,  does  not  ex- 
tend to  the  preservation  of  the  re- 
port and  evidence  in  the  permanent 
form  of  a  book  for  distribution 
among  the  persons  belonging  to 
the  corporation  or  the  members  of 
the  community.  It  has  never  been 
decided  that  the  proceedings  of  a 
public  meeting,  though  it  may  have 
been  convened  by  the  authority  of 
law,  or  of  an  association  engaged 
in  an  enterprise  of  public  utility, 
could  be  reported  in  a  newspaper 
as  a  privileged  publication.  But  a 
libel  contained  in  such  proceedings, 
if  preserved  in  the  form  of  a  bound 
volume,  might  be  attended  with 
more  mischief  to  private  character 
than  any  publication  in  a  news- 
paper of  the  same  document  The 
opinion  of  the  court  is,  that  in  so 
far  as  the  corporate  body  authorized 
the  publication  in  the  form  em- 
ployed, they  are  responsible  in 
damages." 

Mr.  Justice  Daniel  dissented, 
saying : 

"This  action  could  not  be  main- 
tained in  any  forum  possessing  even 
general  legal  powers.  It  is  to  be 
borne  in  mind  that  the  proceedings 
in  this  case  are  not  founded  upon 
any  express  or  peculiar  right  or 
authority  vested  by  statute  or  other 


special  and  competent  power,  but 
are  claimed  as  the  legitimate  conse- 
quences inherent  in  and  flowing 
from  the  nature  and  constitutions 
of  corporations  aggregate.  By  those 
who  afifia-n  this  doctrine,  it  is  indis- 
pensable that  they  should  show,  as 
inherent  m  and  consistent  with  the 
constitution  of  such  corporations, 
the  attributes  and  qualities  to  which 
proceedings  like  the  present  are 
calculated  to  apply,  and  with  which 
they  can  by  any  rational  or  logical 
comprehension  be  made  applicable. 
The  metamorphosis  which  would 
transmute  an  aggregate  corporation 
into  a  natural  person  must  neces- 
sarily transfuse  into  this  new  crea- 
tion the  capabilities  and  qualities 
of  the  being  into  which  it  is  changed. 
Upon  any  other  hypothesis  the  fact 
of  identity  could  not  be.  Natural 
persons  are  capable  of  the  passions 
of  love  and  hate  ;  can  contend  in 
mortal  combat  by  duel  or  other- 
wise ;  can  go  into  the  field  in  com- 
mand of  armies ;  can  sit  upon  the 
bench  of  justice  or  in  the  legislative 
or  executive  departments  of  the  gov- 
ernment. According  to  this  trans- 
mutation theory,  all  these  qualities 
are  imparted  to  its  new  Prome- 
thean experiment,  who,  of  course, 
could  he  be  only  apjirehended, 
or  laid  hold  of,  might,  like  his  pro- 
totype— or  more  properly,  his  other 
self — be  subjected  for  the  misuse 
of  those  qualities  to  the  extremest 
penalties  of  the  law,  the  scaffold  or 
the  gallows.     To  my  apprehension 


38 


PA  R  TIF.S     Ti )     A  CTIONS. 


above,  and  which  w  ere  apparently  filled  up  with  earth. 
No  care  was  taken  by  the  contractor  or  the  engineer  to 
fill  up  these  shafts.     The  water  introduced  into  X.   and 


this  theory  involves  the  confound- 
ing of  all  political,  legal,  moral  and 
social  distinctions.  By  that  appre- 
hension, derived  from  the  defini- 
tions of  corporations  aggregate  as 
given  by  Brooke,  Coke  and  Black- 
stone,  and  by  the  express  lan- 
guage of  this  tribunal  in  the  earlier 
cases  decided  by  it,  these  bodies  are 
regarded  as  merely  artificial — a 
species  oi  ficiiones  juris  created  for 
particular  objects  and  vested,  cer- 
tainly, with  no  greater  or  higher 
attributes  than  the  creator  of  those 
bodies  has  power  to  bestow.  Man 
can  have  no  power  to  confer  mind 
passion  or  moral  perception  nor 
moral  powers  upon  a  mere  fabrica- 
tion of  his  own — a  mere  piece  of 
parchment  or  paper.  No  quo 
animo,  therefore,  can  be  affirmed 
of  a  fiction  to  which  no  animus  or 
passion  or  moral  quality  can  be 
imparted. 

"  It  has  ever  been  admitted  that 
into  slander  or  libel  malice  essen- 
tially enters.  Slander  or  libel  is  an 
injury  inflicted  with  a  wicked  or 
malevolent  motive.  Reason  and 
common  sense  would  hence  con- 
clude that  where  there  could  be 
motive  of  no  kind  whatsoever, 
there  could  be  no  malice,  and 
therefore  no  offence  of  which 
malice  is  the  essential,  'the  leading 
and  distinguishing  characteristic. 

"  In  several  of  the  English  cases 
it  has  been  ruled  that  trover  and 
trespass  quare  claiisum  fregit  may 
be  maintained  against   a  corpora- 


tion ;  and  this,  with  respect  to  the 
latter  action,  is  going  a  great  way, 
as  it  is  not  very  easy  to  explain  in 
what  mode  a  mere  fiction  or  legal 
faculty  can  act  vi  et  armis  ;  yet  a 
conceivable  distinction  may  be 
taken  between  acts  injurious  in 
their  effects,  and  viewed  as  mere 
facts,  and  performed  independ- 
ently of  or  without  motive,  and  for 
which  the  actor  is  bound  to  make 
reparation,  and  condurt  the  char- 
acter of  which  lies  exclusively  in 
the  motive,  and  which  apart  from 
such  motive  ca^i  neither  exist  nor 
be  conceived." 

The  authority  of  the  principal 
case  has  been  followed,  notwith- 
standing this  reasoning,  by  several 
cases  in  the  same  court.  And  in 
Aldrich  v.  Press  Printing  Co.,  9 
Minn.  133,  libelous  matter  in  re- 
gard to  a  candidate  for  public 
office  was  held  not  a  privileged 
communication,  though  in  a  news- 
paper published  by  a  corporation 
aggregate. 

A  corporation  aggregate  has  the 
power  to  compose  and  publish  a 
libel.  When  the  directors,  as  con- 
stituting the  corporation,  within  the 
scope  of  the  objects  and  purposes 
of  the  corporation,  do  an  injury  to 
another,  even  though  such  injury 
necessarily  involves  in  its  commis- 
sion a  malicious  intent,  the  corpora- 
tion must  be  deemed  by  imputation 
to  be  guilty  of  the  wrong  and  an- 
swerable for  it  as  an  individual 
would  be  in  such  case.  Maynard  v. 


GENERAL      RULES. 


39 


Y.'s  icservoir  broke  through  the  shafts  and  Hooded  A.'s 
mine. 

There  could  in  this  case  be  no  doubt  that  A.  had  beei 


Firemen's  Fund  Ins.  Co.,  34  Cal.  48. 

A  corporation  may  also  sue  for 
libel,  for  it  may  have  a  reputHtion 
which  is  equally  as  valuable  to  it 
as  to  a  natural  person,  and  may  be 
injured  in  the  same  way.  Trenton 
Ins.  Co.  V.  Perrine,  3  Zab.  402  ; 
Mutual  Reserve  Fund  Life  Assoc. 
V.  Spectator  Co.,  50  N.  Y.  Super. 
Ct.  460. 

The  statements  of  a  mercantile 
agency  in  regard  to  plainiiff' s  busi- 
ness, credit  and  standing,  made  in 
good  faith  and  upon  infonnation  on 
which  it  relied,  and  in  answer  to  a 
subscriber  who  had  an  interest  in 
knowing  the  facts  making  inquiry, 
are  privileged  and  do  not  make  it 
liable  to  an  action.  Erber  v.  Dun, 
4  McCrary  C.  C.  160;  Trussell  v. 
Scarlett,  18  Fed.  Rep.  214. 

The  members  of  a  church  coun- 
cil are  liable  for  the  publication  of 
their  finding  as  a  council,  charging 
plaintiff  with  having  disturbed  the 
peace  of  the  church  by  circulating 
false  reports  about  the  pastor,  and 
containing  a  censure  therefor,  if 
such  finding  were  false  and  mali- 
ciously made.  Owen  v.  Hildebrand, 
92  Ind.  19.  And  it  was  also  held 
that  it  was  competent  to  show  by 
the  constitution  of  the  church,  that, 
as  a  member  of  the  church,  the 
plaintiff  was  not  subject  to  the  dis- 
cipline of  the  council  without  pre- 
vious citation  to  appear  before  the 
same,  and  that  he  had  had  no  pre- 
vious notice  of  the  proceedings  until 
after  they  were  had,  to  prove  that 


the  council,  in  passing  the  resolu- 
tion complained  of,  was  not  acting 
within  its  lawful  authority  and  juris- 
diction. 

But  in  Landis  v.  Campbell,  79 
Mo.  433,  an  almost  identical  case 
with  the  preceding  as  to  both  find- 
ing and  want  of  notice,  Henry,  J., 
said  :  '  Persons  who  join  churches, 
secret  societies,  benevolent  asso- 
ciations or  temperance  organiza- 
tions voluntarily  submit  themselves 
to  the  jurisdiction  of  those  bodies, 
and  in  matters  of  faith  and  indi- 
vidual conduct  affecting  their  rela- 
tions as  members  thereof  submit 
themselves  to  the  tribunals  estab- 
lished by  those  bodies  to  pass  upon 
such  questions,  and  if  aggrieved  by 
a  decision  against  them,  made  in 
good  faith  by  such  judicatories, 
they  must  seek  their  redress  within 
the  organization,  as  provided  by  its 
laws  or  regulations.  If  the  civil 
courts  should  assume  jurisdiction 
to  review  such  proceedings  upon 
alleged  errors,  they  would  attempt 
to  administer  laws  not  recognized 
by  the  constitution  or  laws  of  the 
state,  of  which  it  may  be  said,  with- 
out disparagement  to  the  judiciary, 
they  may  be  as  ignorant  as  the 
most  illiterate  member  of  tlie  asso- 
ciation Actions  for  libel  and  slan- 
der would  crowd  the  docket  of  the 
civil  courts,  which  would,  upon 
that  theory,  be  open  to  the  com- 
plaint of  every  man  expelled  from 
a  church  or  masonic  or  odd  fel- 
low's lodge,  or  temperance  societ", 


40 


PA  R  TIES     TO    A  C  TIONS. 


damai^^cd.  The  question  for  consideration  was,  in  sub- 
stance, whether  A.  had  sulVcred  an  injury  from  X.  and  Y., 
for  though  the  form  which  the  (juestion  took  was  what  was 
the  strict  duty  of  X.  and  Y.  towards  A.,  this  inquiry  is  in 
substance  exactly  the  same  as  the  question  what  was  the 
right  of  A.  against  them.  The  question  at  issue  is  thus 
stated  by  the  court: — 

"  The  plaintiff,  though  free  from  all  blame  on  his  part, 
must  bear  the  loss,  unless  he  can  establish  that  it  was  th^ 
consequence  of  some  default  for  which  the  defendants  are 
responsible.  The  question  of  law,  therefore,  arises,  what 
is  the  obligation  which  the  law  casts  on  a,  person  who, 
like  the  defendants,  lawfully  brings  on  his  land  something 
which,  though  harmless  whilst  it  remains  there,  will 
naturally  do  mischief  if  it  escape  out  of  his  land.  It  is 
agreed  on  all  hands,  that  he  must  take  care  to  keep  in 
that  which  he  has  brought  on  the  land  and  keeps  there, 
in  order  that  it  may  not  escape  and  damage  his  neigh- 
bors. But  the  question  arises  whether  the  duty  which 
the  law  casts  upon  him   under  such  circumstances   is  an 

and  every  woman  excluded  from  the  question  of  errors  in  the  pro- 

any  of  the  societies  of  which  this  ceeding,  but  give  it  the  same  force 

age  is  so  prolific.     Every  such  ex-  and  effect  as  if  it  had  been  regular 

pulsion  involves  to  some  extent  a  in  every  respect.      *      *      *      The 

charge  of  moral  turpitude  or  con-  acts  of  the  session  in  suspending  and 

duct  unbecoming  a  gentleman  or  expelling  plaintiff  afford  a  complete 

lady.  defence  to  this  action,   unless  the 

"It   follows   from  the   principles  charges  against  plaintiff  were  false, 

announced  in  the  above  cases  that  and   the   members    of   the   session 

if  a  judicatory  of  a  church  has  juris-  maliciously  and  falsely  or  colorably 

dicdon  by  its  laws  to  try  a  member  made  such  proceedings  a  pretence 

for    an    offence    involving    immo-  for  covering  an  intended  scandal, 

rality,  its  decision  is  final  and  not  Farnsworth  v.  Storrs,  5  Cush.  412; 

subject  to  be  reviewed  by  the  civil  Street    v.    Wood,    12    Barb.    105; 

courts  for  alleged  errors;  that  the  Shurtleff  v.    Stevens,   51    Vt.    514; 

civil  courts  will  not  examine  into  S.  C,  31  Am.  Rep.  698." 


GENERAL    RULES.  41 

absolute  duty  to  keep  it  at  his  peril,  or  is  ...  . 
merely  a  duty  to  take  all  reasonable  and  prudent  precau- 
tions in  order  to  keep  it  in,  but  no  more.  If  tne  first  be 
the  law,  the  person  who  has  brought  on  his  land  and  kept 
there  something  dangerous,  and  failed  to  keep  it  in,  is 
responsible  for  all  the  natural  consequences  of  its  escape. 
If  the  second  be  the  limit  of  his  duty,  he  would  not  be 
answerable  except  on  proof  of  negligence,  and  con- 
sequently would  not  be  answerable  for  escape  aris-  [33] 
ing  from  any  latent  defect  which  ordinary  prudence 
and  skill  could  not  detect."  {q) 

The  question  therefore  was,  what  was  A.'s  right  ?  If 
A.  had  an  absolute  right  to  insist  upon  the  defendants 
keeping  the  water  off  his  land,  he  had  suffered  an  injury. 
If  A.  had  only  a  right  to  insist  upon  the  defendants  taking 
reasonable  care  to  keep  the  water  off  his  land,  he  had  suf- 
fered a  loss,  but  had  not  suffered  an  injury.  The  majority 
of  the  court  of  exchequer  held  (r)  that  the  plaintiff's  right 
was  only  to  insist  on  reasonable  care  on  the  part  of  the 
defendants,  and  that  A.  therefore  could  not  maintain  an 
action.  The  exchequer  chamber  is)  held  that  A.'s  right 
was  to  have  the  water  kept  off  his  land,  and  that  there- 
fore A.  could  maintain  an  action,  and  the  house  of  lords 
affirmed  (/)  the  judgment  of  the  exchequer  chamber.  A., 
therefore,  must  now  be  taken  to  have  suffered  aninjurj^as 
well  as  a  loss. 

A.'s  right  would,  however,  have  been  different  had  tho 
water  accumulated  naturally,  and  not  been  artificially 
collected,  {ii) 

Wherever  the  rights  of  adjacent  owners,  or  the  rights 
of  persons  of  whom  one  owns  the  surface  of  the  soil,  and 
the  other  the  soil  below  the  surface,  come  into  question, 
the  inquiry,  what  does  or  does  not  constitute  an  injury  to 

(^)  Fletcher  v.  Kylands,  L.  R.  I,  Ex.  279,  Ex.  Ch. 
(r)  Ibid..  34  L.  J.  177,  Ex. ;  3  H.  &  C.  774. 
(/)  Ibid.,  L.  R.  I,  Ex.  265  ;  35  L.  J.,  154  Ex.  (Ex.  Ch  ). 
(/)  Il)id..  L.  R.  3  H.  L.  230. 

(»/)  .Smith  V.  Kcnrick,  7  C.  H   515  ;  18  L.  J.  172,  C.  P.     Compare  Baird  t. 
Williamson,  33  L.  J.  roi,  C.  T. ;  15  C.  B..  N.  .S,,  376 


42  PARTIES     TO    ACTIONS. 

the  one  party  or  the  other,  is  apt  to  give  rise  to  fine  dis- 
tinctions. 

The  owner  of  land,  for  example,  has  a  right  to  sup- 
port for  his  land  from  the  adjacent   land  ;   {v)    but   this 

right  is  not  an  absolute  right,  and  the  infringement 
[34]     of  it  is  not  a  cause  of  action  without  appreciable 

damage,  {zu)  But  this  right  of  the  owner  to  sup- 
port from  the  adjacent  land  extends  only  to  the  land  in 
its  natural  unincumbered  state,  and  not  with  the  addi- 
tional weight  of  the  buildings  upon  it.  {x)  For  "  it  may 
be  true  that  if  my  land  adjoins  that  of  another,  and  I 
have  not  by  building  increased  the  weight  upon  my  soil, 
and  my  neighbor  digs  in  his  land  so  as  to  occasion  mine 
to  fall  in,  he  may  be  liable  to  an  action.  But,  if  I  have 
laid  an  additional  weight  upon  my  land,  it  does  not  follow 
that  he  is  to  be  deprived  of  the  right  of  digging  his  own 
ground,  because  mine  will  then  become  incapable  of  sup- 
porting the  artificial  weight  which  I  have  laid  upon  it." 
(j)  The  owner  of  the  land  has,  again,  a  right  to  support 
for  the  natural  surface,  as  against  the  owner  of  the  subja- 
cent strata,  {z)  though  not  to  support  of  buildings  erected 
thereon,  {a)  yet  he  may  maintain  an  action  for  disturbance 
of  the  natural  right  to  support  for  the  surface,  notwith- 
standing buildings  have  been  erected  thereon,  provided 
the  weight  of  the  buildings  did  not  cause  the  injury,  {b) 

Take,  again,  rights  having  reference  to  water.  A  mill- 
owner  has  no  right  of  action  against  a  person  who,  by 
digging  a  well  on  his  own  land,  prevents  the  natural  per- 
colation of  water  to  his  mill-stream,  {c)  But  a  person  has 
a   right   of  action  when    an  underground   stream  which 

iv)  Nicklin  v.  Williamson,  lO  Ex.  359;  23  L.  J.  335,  Ex.;  Smith  v. 
Thackerah,  L.  R.  i,  C.  P.  564;  35  L.  J.  276,  C.  P. 

(ju)  Nicklin  v.  Williamson,  10  Ex.  359  ;  23  L.  J.  335,  Ex. ;  Smith  v. 
Thackerah,  L.  R.  i,  C.  P.  564  ;  35  L.  J.  276,  C.  P. 

(x)  Dodd  V.  Holme,  i  A.  &  E.  493  ;  Wyatt  v.  Harrison,  3  B.  and  Ad.  871. 

(y)  Wyatt  v.  Harrison,  3  B.  &  Ad.  876,  per  Curiam. 

(z)  Humphries  v.  Brogden,  12  Q.  B.  739  ;  20  L.  J.  10.  Q.  B.  ;  Smart  v. 
Morton,  5  E.  &  B.  30  ;  24  L.  J.  260,  Q.  B. 

{a)  See  Humphries  v.  Brogden,  12  Q.  B.  742  ;  20  L.  J.  10,  Q.  B. 

\l>)  Stroyan  v.  Knowles,  6  H  &  N.  454  ;  30  L.  J.  102,  Ex. 

\c)  Chasemore  v.  Richards,  29  L.  J.,  (H.  L.)  81,  Ex.  ;  7  H.  L.  C.  349- 


GENERAL    RULE^.  43 

flows  into  the  plaintift's  mill-stream  is  fouled  Dy  the  works 
of  the  defendant,  {d)  And  the  general  rule  on  this  point 
seems  to  be  that  a  proprietor  of  land  has  a  right  to 
have  the  natural  streams  of  water  which  run  through  [35] 
his  land,  run  in  their  natural  course,  {e)  and  has  a 
right  also  to  use  it  as  it  passes,  (/)  and  all  riparian  pro- 
prietors have  these  rights  ;  {g')  but  that  on  the  other  hand, 
with  respect  to  water,  whether  on  the  surface  or  under 
ground,  not  running  in  defined  streams,  no  similar  rights 
exist.  Such  water  is  the  absolute  property  of  the  owner 
of  the  soil  of  which  it  forms  a  part,  and  no  action  will  lie 
for  abstracting  it,  although  such  abstraction  may  diminish 
the  water  under  neighboring  lands,  or  otherwise  injure 
them.  (//)  Hence,  where  A.  was  the  o\yner  of  land,  and 
X.,  by  draining  his  own  land,  withdrew  from  A.  water 
which  theretofore  ran  beneath  A.'s  land,  and  thereby 
caused  A.'s  land  to  subside,  A.  was  held  to  have  no  right 
of  action  against  X.  (z) 

A.  and  B.  (the  plaintiffs)  were  allowed  by  M.,  the  pro- 
prietor of  a  canal,  to  divert  some  of  the  water  in  it,  and 
use  it  for  their  steam-engines.  X.  (the  defendant)  fouled 
the  water  of  the  canal,  whereby  it  flowed  into  their  prem- 
ises in  afoul  state,  and  injured  the  boilers  of  their  engines. 
{k)  The  damage  to  A.  and  B.  was  in  this  case  clear.  Tiie 
question  was,  whether  the  plaintiffs,  being  simply  per- 
mitted by  M.  to  use  the  stream,  had  a  right  of  action 
against  X.  The  Court  of  Exchequer  (/)  held  that  tlie 
plaintiffs  had  a  right  of  action,  i.  e.,  had  sustained  an  in- 
jury.    The  judges  in  the  Exchequer  Chamber  (w)  were 

{d)  Hodgkinson  v.  Ennor,  4  B.  &  S.  229  ;  32  L.  J.  231,  Q.  B  ;  and  see 
Acton  V.  Blundell,  13  L.  J.  2Sg,  Ex. 

(e)  Wood  V.  Wand,  3  Ex.  748,  775. 

(J)  Einl)rey  v.  Owen,  20  L.  J.  2r2,  Ex.  ;  6  Ex.  369. 

(g)  Il.id. 

(h)  Acton  V.  r.linulell,  12  M.  &  W.  324  ;  13  L.  J.  2S9,  Ex.  ;  Chascmore  t. 
Richards,  29  L.  J.  81.  Ex.  ;  7  II.  L.  C.  349. 

(0  Poppleweil  V.  Ilodkinson,  L.  R.  4.  Ex.  248  ;  38  I,.  J-  126.  Ex.  (Ex.  Ch,). 

\k)  Whaley  v.  I.aing.  2  II.  &  N.  476  ;  26  L.  J.  327,  Ex  ;  3  H.  &  N.  675; 
a?  L.  J.  422,  Ex.  (Ex.  Ch.). 

(/■)  2  II.  &  N.  476  ;  26  L.  J.  327,  Ex. 

(m)  3  M.  &  N.  6:5  ;  27  L."j.  422.  Ex.  (Ex.  Ch.). 


44  PARTIHS     TO    ACTIONS. 

equally  divided  in  opinion   as  to  whether  the  olaintiffs  had 
or  had  not  a  right  of  action. 

"It  is  contended,"  sa3's  Crowder,  ).,  "that  no 

[36]      right  of  action  is  shown  in  the  declaration But 

I  think  it  sufficiently  appears  that  the  plaintiffs  were 
in  the  lawful  enjoyment  of  a  beneficial  flow  of  clear  water 
from  the  branch  canal,  and  that  the  defendant  wrongfully 
polluted  the- stream,  and  thereby  damaged  the  plaintiffs, 
which  appears  to  me  a  sufficient  statement  of  a  good  cause 
of  action."  (w) 

The  opposite  view  is  thus  stated  by  Williams,  J. :  The 
declaration  "  shows  no  cause  of  action ;  it  merely  alleges 
that  the  plaintiffs  had  enjoyed  the  benefit  of  the  waters  of 
a  canal,  near  to  their  engine,  which  waters  had  been  used, 
and  ought  to  have  been  free  from  the  pollution  thereinafter 
mentioned  ;  and  it  then  avers  that  the  defendant  polluted 
them  and  thereby  damaged  the  engines.  I  agree  with 
th.e  Barons  of  the  Exchequer  as  to  the  construction  of  the 
allegation  that  the  waters  ought  to  have  been  free  from 
pollution,  viz.,  that  it  means,  not  an  assertion  of  title  in 
the  plaintiffs,  but  that  the  defendant  had  no  right  to  foul 
the  water.  But  if  this  be  so,  then  the  declaration  contains 
no  allegation  whatever  that  the  plaintiffs  were  rightfully 
in  the  enjoyment  of  the  benefits  of  the  waters,  and  there 
is  nothing  to  show  that  they  were  not  themselves  wrong- 
doers, in  which  case  I  think  they  would  have  no  right  of 
action."  (<?) 

"  I  can  find,"  it  is  said  by  Wightman,  J.,  "  nothing  in 
the  declaration  to  show  that  the  defendant,  by  fouling  the 
water,  injured  an}-  right  of  the  plaintiffs,  nor  that  as  against 
them  he  can  be  considered  a  wrong-doer,  anil  the  intro- 
duction of  the  word  '  wrongfully,'  will  not  make  him, 
prima  facie,  a  wrong-doer,  unless  the  circumstances  stated 
in  the  declaration  show  him  to  be  so.  I  am  therefore  of 
opinion  that  the  declaration  does  not  show  any  right  oi 
action  against  the  defendant."  (/>) 

{n)  Whaley  v.  Laing,  3  H.  &  N.  680  (Ex.  Ch.),  per  Crowder,  J. 
{o)  Ibid.,  683,  judgment  of  Williams,  J. 
(/)  Ibid.,  685,  judgment  of  WiGHTMAN,  J. 


GENERAL     RULES.  45 

This  case  therefore  raised  the  question,  whether  a  per- 
son merely  permitted  to  use  certain  water  has  a  right 
as  against  a  wrong-doer  to  have  the  water  kept  pure  ;  [37] 
and  though  the  rights  of  such  a  mere  licensee  still 
appear  doubtful,  it  would  seem  that  a  person  to  whom  the 
right  to  use  the  water  has  been  regularly  granted  \iy  the 
owners  of  the  stream,  may  sue  any  one  who  pollutes  it, 
{(J)  on  the  principle  that  "  as  a  general  rule,  when  a  man 
has  a  property,  he  may  grant  to  others  estates  in,  and 
right  of  enjoyment  of  it,  and  the  grantees  may  maintain 
actions  against  those  who  disturb  them."  (r) 

A  canal  company  granted  by  deed  to  A.  (the  plaintiff) 
the  sole  and  exclusive  right  or  liberty  of  putting  or  using 
pleasure-boats  for  hire  on  their  canal.  X.  (the  defend- 
ant) put  and  used  pleasure-boats  for  hire  on  the  canal.  It 
was  held  {s)  that  A.  could  not  bring  an  action  in  his 
own  name  against  X,  The  ground  of  this  decision  is, 
that  though  X.  was  a  wrong-doer  as  against  the  company, 
and  that  though  A.  had  a  right  as  against  the  company  to 
the  exclusive  use  of  the  canal,  X.  had  not  violated  any 
right  possessed  by  A.  as  against  him. 

"  This  grant  merely  operates  as  a  license  or  covenant 
on  the  part  of  the  grantors,  and  is  binding  on  them  as 
between  themselves  and  the  grantee,  but  gives  him  no 
right  of  action  in  his  own  name  for  any  infringement  of 
the  supposed  exclusive  right.  It  is  argued  that  as  the 
owner  of  an  estate  may  grant  a  right  to  cut  turves,  or  to 
fish,  or  hunt,  there  is  no  reason  why  he  mav  not  grant 
such  a  right  as  that  now  claimed  by  the  plaintiff.  The 
answer  is  that  the  law  will  not  allow  it.  So  the  law  will 
not  permit  the  owner  of  an  estate  to  grant  it  alternately 
to  his  heirs  male  and  heirs  female.  A  new  species  of 
incorporeal  hereditament  can  not  be  created  at  the  will 
and  pleasure  of  the  owner  of  i)roi)erty ;  but  he  must  be 
content  to  accept  the  estate  and  the  right  to  dispose  of  it 

(q)  Nultall    V.  Rracewcll,   L.   R.  2,  Ex.  I  ;    36  L.  J.  I,  Ex.     .See  Stockpoil 
Water  Works  Co.  v.  Potter,  3  H.  &  C.  yyo  ;  31  L.  J.  9,  Ex. 
(r)  Ibid.,  L.  K.  2,  Ex,  11,  per  Hkamwkij,,  H. 
\s)  Hil   V.  Tupper,  2  II.  &  C.  12I  ;  32  L.J.  217,  Ex. 


46  PARTIES     TO     ACTIONS. 

subject  to  the  law  as  settled  by  decisions  and  con- 
[38]     trolled   by   Acts   of  Parliament.     A   grantor  niav 

bind  himself  by  covenant  to  allow  any  right  he 
pleases  over  his  property,  but  he  can  not  annex  to  it  a 
new  incident  so  as  to  enable  the  grantee  to  sue  in  his  own 
name  for  an  infringement  of  such  a  limited  right  as  that 
now  claimed."  {s) 

"  This  grant  is  perfectly  valid  as  between  the  plaintiff 
and  the  canal  company  ;  but  in  order  to  support  this 
action,  the  plaintiff  must  establish  that  such  an  estate  or 
interest  vested  in  him  that  the  act  of  the  defendant 
amounted  to  an  eviction.  None  of  the  cases  cited  are  at 
all  analogous  to  this,  and  some  authority  must  be  pro- 
duced before  we  can  hold  that  such  a  right  can  be 
created.  To  admit  the  right  would  lead  to  an  infinite 
variety  of  interests  in  land,  and  an  indefinite  increase  of 
possible  estates.  The  only  consequence  is  that,  as  be- 
tween the  plaintiff  and  the  canal  compan}^  he  has  a  perfect 
right  to  enjoy  the  advantage  of  the  covenant  or  contract ; 
and,  if  he  has  been  disturbed  in  the  enj<)3arient  of  it,  he 
must  obtain  the  permission  of  the  canal  company  to  sue 
in  their  name."  (/) 

This  case  deserves  particular  notice.  A.  (the  plaintiff) 
had  no  right  of  action,  because  X.  had  neither  broken 
any  contract  with  him,  nor  invaded  any  right  which  he 
possessed  as  against  X.  independently  of  contract.  X. 
was  a  wrong-doer,  but  the  wrong  he  committed  was  an 
invasion  of  the  rights,  not  of  A.,  but  of  the  company,  wh 
had  granted  to  A.  the  sole  use  of  the  canal.  A.,  on  the 
other  hand,  possessed  rights  with  regard  to  the  canal, 
but  these  rights  arose  out  of  the  contract  between  him  and 
the  company,  and  were  rights  against  the  company  only. 
A.  therefore  might  probably  have  sued  the  company  for 
1  breach  of  their  contract  with  him  in  allowing  X.  to  use 
the  canal,    or  might   have   f)btained   from    the  company 

permission  to  sue  X.  in  their  name. 
[39]  The  case  would  have  been  different  if  X.,    in- 

{s)  Hill  V.  Tupper,  2  II.  &  C.  127.  12S,  julgment  ^.f  Pollock.  C.  B. 
tt)  Ibid.  123.     Judgment  of  Marti.n.  H. 


GENERAL     RULES.  47 

stead  of  merely  rowing  on  the  canal,  had  attemptea 
to  exclude  A.  from  it.  Under  such  circumstances  a  dis- 
tinct right  of  A.'s,  sc,  to  go  freely  on  the  canal,  would 
have  been  violated,  and  A.  might  have  brought  an  action 
against  X.  in  his  own  name. 

"  It  was  competent  for  the  grantors  in  Hill  v.  Tupper 
to  grant  the  plaintiff  a  right  of  rowing  boats  on  the  canal, 
and  had  any  one  interfered  with  that  right,  the  grantee 
might  have  maintained  an  action  against  him.  But  the 
plaintiff  in  that  case  did  not  sue  because  his  rowing  was 
interfered  with,  but  because  the  defendant  used  a  boat  on 
the  water.  Now,  suppose  the  grantors  had  granted  to 
the  plaintiff  a  right  to  row  boats,  and  to  [B.  |  a  right  (as 
far  as  the  word  is  sensible)  that  no  one  but  the  plaintifl 
should  row  boats  on  the  canal ;  clearly  [B.]  could  not 
have  maintained  any  action.  He  would  not  have  sued  in 
respect  of  any  estate  or  of  any  easement,  or  of  any  mode 
^f  enjoyment  which  was  disturbed,  nor  did  the  plaintiff  in 
taat  case.  It  makes  no  difference  that  the  two  rights,  as 
far  as  possible,  were  in  him,  viz.,  a  right  to  row  and  a 
right  to  exclude  others.  It  was  in  respect  of  the  latter  he 
sued,  and  it  mattered  not  he  possessed  the  former."  {u) 

The  cases  which  have  been  cited  in  illustration  of  the 
principle  that  no  one  can  sue  who  has  not  sustained  an 
injury,  have  been  taken  from  actions  for  tort.  The  prin- 
ciple itself  applies  equally  to  actions  on  contract.  As, 
however,  a  person's  right  under  a  contract  depends  upon 
its  terms,  the  inquiry  what,  if  any,  is  the  right  of  the 
plaintiff,  resolves  itself,  in  actions  ex  contractu,  into  the 
question,  "what  are  the  terms  of  the  contract?" — the 
reply  to  which  is  a  matter  de])ending  either  upon  direct 
evidence,  or  upon  what  is  called  the  "  interpretation  "  ot 
documents. 

If,  however,  the  terms  of  a  contract  are  not  in 
fact  fixed  upon  by  the  parties,   but  are  affixed   by      [40] 
the  law  to  the  relation  in  which  they  have  agreed 
to  stand  towards  one  another,  the  so-called  incpiiry  intc 
the  terms  of  the  contract  is  obviously  ncjthing  myre  tiiar 

(l^^  Nuttall  V.  Bu-icewfll,  I,.  R.  2.  Ex.  ii,  u,  per  Mkamwki.i,.  IJ. 


^8  rA/^T/J:}>     TO     ACTIONS. 

an  in(]uiry  into  the  nature  of  the  right,  if  any,  p'jb.sessed 
by  the  plaintift". 

Thus,  where  it  is  sought  to  determine  how  far  a  com- 
mon carrier  is  liable  for  the  safety  of  passengers,  (,r)  or  a 
person  who  lets  out  seats  on  a  stand  for  the  safety  of  the 
sight-seers  by  whom  the  seats  are  hired,  (j)  the  point  for 
determination  is  in  reality  whether  the  plaintiff  has  or 
has  not  suffered  an  interference  with  his  legal  rights,  and 
in  short  jjives  rise  to  a  question  of  the  same  kind  as  that 
which  has  to  be  decided  when  it  is  necessary  to  ascertain 
what  is  the  right,  if  any,  which  a  landowner  has  to  sup- 
Dort  from  his  neighbor's  adjacent  ground.  Actions, 
nowever,  brought  on  account  of  the  breach  of  some  con- 
dition, superadded  b}'  law  or  custom  to  the  terms  of  a 
contract,  are,  though  in  essence  actions  on  contract,  most 
frequently,  in  form,  actions  for  tort. 

Since,  of  acts  which  cause  damage  some  are  ''injuri- 
ous "  and  others  are  not,  it  is  natural  to  seek  for  a  criterion 
to  determine  whether  damage  has  or  has  not  been  occa- 
sioned by  what  the  law  esteems  an  injury,  and  the  rule 
which  has  been  laid  down  is  "  to  consider  whether  any 
rights  existing  in  the  party  damnified  have  been  infringed 
upon,  for  if  so,  the  infringement  thereof  is  an  injury. "(^r) 
But  this  maxim  is  in  reality  only  a  repetition  of  the  rule 
that  mere  damage  without  injury  does  not  give  a  cause  of 
action.  Another  maxim  which  aims  at  defining  the  limits 
of  different  rights  (and  to  do  this  is  in  reality  to  point  out 
what  acts  are  injurious)  is  "  so  to  use  your  own  property 
as  not  to  injure  the  rights  of  another."  (a)  It  has  been 
criticised  on  the  ground  that  "  a  party  may  damage  the 
property  of  another  where  the  law  permits,  and  he 
[41]  may  not  where  the  law  prohibits,  so  that  the  maxim 
can  never  be  applied  till  the  law  is  ascertained,  and 
when  it  is,  the  maxim  is  superfluous."  {d) 

(x)  Readhead  v.    Midland  Ry.,   L.   R.  4,  Q.  11.   379  ;  38  L.  J.  169,  Q.  B 
Ex.  Ch. 

(7)  Francis  v.  Cockrell,  L.  R.  5,  Q.  B.  184 ;  39  L.  J.  113,  Q.  B. 

(z)  Ashby  V.  White,  notes,  i  Smith,  L.  C,  6th  ed.,  263. 

(a)  Broom,  Maxims,  4th  ed.,  357. 

id)  Tozer  v.  Child.  26  L.  J.  151,  Q.  B.  ;  7  E.  &  B.  377. 


GENERAL    RULES,        .  49 

On  the  whole,  it  may  be  doubted  whether  any  genera' 
principle  by  <\^hich  to  discriminate  acts  which  merel)- 
cause  damage  from  those  which  amount  to  injuries,  i.  e.^ 
are  an  infringement  of  legal  rights,  can  be  obtained. 


Rule  3, — No  action  can  be  brought  except  for 
the  infringement  of  a  common  law  right,  {cy 

A  person  may  possess  rights  which  can  not  be  enforced 
by  an  action  ;  for  our  courts  of  law  only  consider  legai 
rights.  "  Our  courts  of  equity  have  other  rules  by  which 
they  sometimes  supersede  or  supplement  legal  rules."  (d) 
The  rights  enforceable  in  courts  of  equity  only  are  termed 
equitable  rights,  and  are  never  the  basis  of  an  action  at 
law,  (e)  though  their  existence  (/)  is  to  some  extent  rec- 
ognized by  the  common  law  courts. 

Hence,  a  cestui  que  trust  can  not  bring  an  action  against 
his  trustee  for  his  act  as  trustee."  Thus,  a  trustee  who 
has  received  trust  money,  is  accountable  for  it  to  the  cestui 
que  trust  in  the  Court  of  Chancery,  (g)  but  in  the  courts 
of  law  he  is  treated,  for  most  purposes,  as  the  absolute 
owner,  and  no  action  can  in  general  be  maintained  bj  the 
cestui  que  trust  against  him  to  recover  trust-money, 
for  "  it  is  quite  clear  that  so  long  as  no  other  relation 
subsists  between  two  parties,  except  that  of  trustee  and 
cestui  que  trust,  no  action  can  be  maintained  by 
the  latter  against  the  former  for  any  money  in  his     [42] 

(..•)  As  contrasted  with  an  equitable  right.  Rights  at  common  law  are  also 
frequently  contrasted  with  rights  given  by  statute. 

(d)  Bauerman  v.  Radenius,  2  Smith,  L.  C,  6th  ed.,  367,  per  Kenyon, 
C.J. 

(«•)  Bartlett  v.  Wells,  i  B.  &  .S.  336 ;  31  L.  J.  57,  Q.  B. 

(/)  Maherly  v.  Robins,  5  Taunt.  625  ;  Powles  v.  Innes,  11  M.  &  W.  10  ; 
D'Arnay  v.  Clicsneau,  13  M.  &  W.  796. 

(^)  Pardoe  v.  Price,  16  M.  &  W.  451. 

I.  One  suing  a  trustee  for  not  ac-    sertion    that    defendant    has    con- 
counting,  cannot  convert  the  action    verted  the  money  to  his  own  use. 
into  one  for  tort  by  adding  to  the     Segclkcn  v,  Meyer,  94  N.  Y.  474. 
allegation  of  refusal  to  pay  an  as- 
4 


50  PARTIES     TO    ACTIONS. 

liands.  The  trustee  is  in  such  a  case  the  only  person 
entitled  at  law  to  the  money,  and  the  remedy  of  the  cestui 
quo  trust  is  exclusively  in  a  court  of  equity.  ...  So 
lono-  as  there  is  no  liabilit}'  except  as  trustee,  the  cestui 
que  trust  has  no  le<;al  remedy."  (h)  A  husband,  therefore, 
can  not  recover  the  property  of  his  wife  in  the  hands  of  a 
trustee  (/)  and  an  executor  or  administrator  is  in  the  posi- 
tion of  a  trustee,  and  the  legacies  or  distributive  shares, 
payable  out  of  the  estate  of  the  deceased,  can  not  be  re- 
covered at  law  as  debts.  {J)  And  it  should  be  borne  in 
mind  that  persons  are  legally  considered  as  trustees  who 
would  not  be  so  called  in  ordinary  language.  Thus  a  person 
who  assigns  the  interest  in  a  debt  or  other  contract  to 
another  is  an  assignoi  trustee  for  the  assignee. 

A  trustee  may,  however,  make  himself  liable  to  an  ac- 
tion by  an  acknowledgment  or  an  admission  that  he  holds 
a  specific  sum  for  his  cestui  que  trust,  {k)  since  after  such 
an  admission  the  trustee  is  debarred  from  setting  up  his 
character  of  trustee,  and  becomes  liable  at  law  to  the 
cestui  que  trust  for  the  money  as  for  money  received  to 
his  use.  Thus,  though  a  husband  can  not  recover  the 
separate  property  of  his  wife  in  the  hands  of  a  trustee,  he 
can  recover  it  as  money  received  to  his  use  in  an  action 
against  an  agent  of  the  wife  to  whom  the  trustee  has  paid 
it  over,  (/)  and  an  executor  may  have  an  action  brought 
against  him  by  a  legatee,  to  whom  he  has  admitted  that 

he  has  received  the  money  and  holds  it  to  his  use  ; 
[43]      and  generally,  "  when  there  is  no  trust  to  execute 

except  that  of  paying  over  money  to  the  cestui  que 
trust,  the  trustee  by  his  conduct,  as  for  instance  by  admis- 
sion that  he  has  money  to  be  paid  over,  or  by  settling  ac- 
counts on  that  footing  may,  and  often  does,  make  himself  lia- 

{h)  Pardoe  v.  Price,  458,  459,  per  Curiam;  Edwards  v.  Bates,  7  M.  &  G. 

590- 

(/)  Pird  V.  Peagrum,  r3  C.  B.  639  ;  22  L.  J.  166,  C.  P. 

(/)  Decks  V.  Strutt,  5  T.  R.  6qO;  Jones  v.  Tanner,  7  B.  &  C.  542  ;  Wil 
liams,  Executors.  5th  ed.,  1746. 

{k)  Remon  v.  Hay  ward,  2  A.  &  E.  666  ;    Roper  v.  Holland,  3  A.  &  E.  99. 

(/)  Bird  V.  Peagium,  13  C.  B.  639  ;  22  L.  J.  166,  C.  P.  Compare  Sloper  v. 
Cottrell,  6  E.  &  B.  479  ;  26  L.  J.,  7  Q.  B.  ;  Fleet  v.  Perrins,  L.  R.  3,  Q.  B.,  536  ; 
L  R.  4.  Q.  B.  500.  Ex.  Ch.  ;  Topliam  v.  Morecroft,  8  E.  .S-  B.  972. 


GENERAL     RULES. 


51 


blot  J  ail  fiction  at  law  at  the  suit  of  the  cestui  que  trust,  for 
money  had  and  received,  or  for  money  due  on  account 
stated.  Such  was  the  case  of  Roper  v.  Holland,  (w)  and 
there  are  many  others  to  the  same  effect.  But  so  lonsr  as 
there  is  no  liability  except  as  trustee,  the  cestui  que  trust 
has  no  legal  remedy."  («) 

In  these  cases  the  trustee  is  sued  at  law.  ^f  at  all,  not 
as  a  trustee,  but  as  a  debtor.  {6) 


Subordinate  Rule. 

Where  one  person  has  a  legal  and  another  an  equitable  in- 
terest in  the  same  property,  any  action  in  respect  of  such 
property  must  be  brought  by  the  person  who  has  the  legal 
interest. ' 

It  often  happens  that  one  person  is  legally  and  another 
equitably  interested  in  the  same  property,  as   where  A. 

(w)  3  A.  &  E.  99. 

(«)  Pardee  v.  Price,  i6  M.  &  W.  458,  459,  per  Rolfe,  E. 

(p)  Broom,  Parties,  2nd  ed.,  109  ;  Bullen,  Pleadings,  3rd  ed.,  46,  47. 

I.  Every  action    must  be  prose-  lew  v.  Hilliman,  16  N.  J.  Eq.  25; 

cuted  in  the  name  of  the  real  party  Dixon  v.  Buell,  21  111.  204. 
in  interest  in  the  states  under  the        The  exception  in  the  code  of  the 

new  code.     Wiggins  v.  McDonald,  "  trustee  of  an  express  trust,"  from 

18  Cal    127;    Weaver  v.  Trustees,  the   requirement    that    all    actions 

&c.,  28  Ind.  119 ;  Steeple  V.  Down-  must  be  prosecuted  in   the   name 

ing,  60  Ind.  488;  Freeman  v.  Fal-  of  the  real  party  in  interest,  is  not 

coner,  45    N.   Y.    Super.    Ct.    384;  limited  to  •' a  person  with  whom,  or 

Robbins  v.  Deverill,  20  Wis.  156;  in  whose  name  a  contract  shall  be 

Hicklin  V.  Nebraska  City  National  made  for  the  benefit  of  another," 

I3ank,  8  Neb.  468.     This   rule   is  but  this  is  included  as  a  class  within 

only  a  statutory  enactment  of  what  the  general  term.   Weaver  v.  Trus- 

has  always  prevailed  in  courts  ot  tees,   28   Ind.   120:   Considerant  v. 

equity.     GrinncU     v.     Schmidt,     2  Brisbane,  22  N.  Y.  392  ;  Robbins  v, 

Sandf.  707.  Deverill,    20   Wis.    157;    Smith    v. 

A  person   beneficially  interested  Smith,  5  Bush,  632:  Hirshfelder  v. 

in  a  contract  may,  in  equity,  main-  Mitchell,  54  Ala.  419. 
tain  a  suit  in  his  own  name.     liur-        A  trustee  of  an  express  trust  is  a 


52 


PARTIES     TO    ACTIONS. 


has  assii;-nc(.l  his  interest  in  a  contract  to  B.  (/)  Actions 
with  re>;aixl  to  such  propert)'  must  be  brought  by  or 
ra'he.-  in  the  name  of  A.,  antl  not  of  B.  {q) 

(/)  Casielli  v.  Boildinrrton,  i  E.  &  H.  66,  ;  22  L.  J.  5,  Q.  B. ;  i  E.  &  B.  S79 ; 
23  I-  J.  31.  Q.  B.  (Ex.  Cli.). 

((/)  When  a  mortgagor  is  in  possession,  he  may  indeed  bring  actions  of  tres- 
pass for  interference  with  his  right  to  possession  ;  but  he  then  sues,  not  in  vir- 
tue of  owning  the  land,  but  simply  in  virtue  of  being  in  possession,  on  which 
g.ound  a  tenant  may  always  bring  trespass.  Conf.  as  to  Ejectment,  Chapter 
XXXIII. 


person  with  whom,  or  in  whose 
name,  a  contract  is  made  for  the 
benefit  of  another.  Fiarney  v. 
Dutcher,  15  Mo.  93;  Gardiner  v. 
Kellogg,  14  Wis.  608 ;  Wolcott  v. 
Standley,  62  Ind.  199;  Holladay  v. 
Davis,  5  Oreg.  43  ;  Hart  v.  Smith, 
30  Conn.  97. 

And  such  trustee  may  maintain 
action  upon  the  contract  in  his  own 
name  alone.  McClanahan  v.  Beas- 
ley,  17  B.  Mon.  117;  Arosemena 
V.  Hinkley,  i  r  Jones  &  S.  45  ;  Mil- 
lard V.  Baldwin,  3  Gray  486  ;  Pon- 
der V.  McGruder,  42  Ga.  244  ;  State 
V.  Jacob,  2  Mo.  App.  185  ;  Good- 
rich V.  Milwaukee,  24  Wis.  430;  St. 
Anthony  Mill  Co.  v.  Vandall,  i 
Minn.  251;  Carillo  v.  McPhillips, 
55  Cal.  130;  Life  Ins.  Co.  v.  Ray, 
50  Tex.  517;  Treat  v.  Stanton,  14 
Conn,  451. 


Whaley,  33  Miss.  162;  Peek  v. 
Dodds,  10  Nev.  207.  So  the  as- 
signee, without  consideration,  "  for 
collection."  Poorman  v.  Mills,  35 
Cal.  120;  but  see  Abrams  v.  Cure- 
ton,  72  N.  C.  526. 

An  action  for  the  benefit  of  an 
unincorporated  association  may  be 
brought  in  the  name  of  its  trustees 
and  agents.  Trustees  of  M.  E. 
Church  V.  Adams,  4  Oreg.  78 ; 
Beatty  v.  Kurtz,  2  Pet.  579 ;  Cross 
V.  Jackson,  5  Hill  479;  Harper  v. 
Crawford,  13  Ohio  129  ;  First  Cong. 
Soc.  V.  Trustees,  23  Pick.  151  ;  East 
Haddam  Church  v.  East  Haddam 
Soc,  44  Conn.  260  ;  Gibson  v.  Arm- 
strong, 7  B.  Mon.  487 ;  Kelly  v. 
Love,  20  Gratt.  130. 

The  trustee  named  in  a  trust- 
mortgage  may  foreclose  and  sell 
the    property   without  joining    the 


But  the  beneficiary  may  also  bring    beneficiary  as  plaintiff.     Wright  v. 


the  action  in  his  own  name.  Price 
V.  Phoenix  Ins.  Co.,  17  Minn.  499; 
McComas  v.  Ins.  Co.,  56  Mo.  575  ; 
Van  Schaick  v.  Third  Ave.  R.  R. 
Co,  38  N.  Y.  354;  Davidson  v. 
Elms,  67  N.  C,  228. 

The  holder  of  a  note  as  collateral 
may  sue  on  it  as  trustee.    Willey  v. 


Bundy,  11  Ind.  402;  Hays  v. 
Gallon,  &c.,  Co.,  29  Ohio  St.  344; 
Shelden  v.  Bennett,  44  Mich.  634  ; 
Alabama  Life  Ins.  Co.  v.  Pottway, 
24  Ala.  561. 

A  trustee  of  a  mortgage  made  by 
himself  may  maintain  a  bill  in 
equity  to  redeem  without  making 


Gatling,  70  N.  C.  421  ;  Donohue  v.     the  beneficiary  a  party  to  the  bill. 
Gamble,    38    Cal.  351;   Castner  v.     Boyden  v.  Partridge,  2  Gray,  193. 
Sumner,   2   Minn.  47  ;    Marble  v.        A  third  person,  for  whose  benefit 


GENERAL    RULES. 


53 


Moreover,  the  courts  of  law  look  in  strict  theory  only 
to  the  parties  on  the  record,  i.  e.,  to  the  parties  whose 
names  appear  on  the  pleadings,  and  "a  cause  must  always 
be  decided  as  if  the  parties  on  the  record  were  the 
persons  really  interested."  (r)  Hence,  where  A.  [44] 
sues  as  trustee  for  B..  or  in  other  words  B.  brings 

(r)  Com.  Dig.,   Action,  B.  38  ;    Baueiman  v.  Radenius,  2   Smith   L.  C,  6tb 
ed.,  362. 

a  contract  is  expressly  made,  may  name.     Rogers  v.  Gosnell,  51  Mo. 

maintain  his  action  thereon.    Sailly  469 ;  though  the  consideration  does 

V.  Cleveland,  10  VVend    162  ;  Allen  not  move  from  him.      Barboro  v. 

V.  Thomas,  3  Mete.  (Ky.)  199  ;  Phil-  Occidental  Grove,  4  Mo.  App.  433; 

lips  V.  Bush,  15  Iowa,  64;   Brewer  Kollock   v.  Parcher,  52  Wis.  399; 

V.   Dyer,   7   Cush.   340;    Nutter   v.  Barker   v.    Bucklin,  2    Denio,   47; 


Sydenstricker,  1 1  W.  Va.  547 ; 
Larned  v.  Carpenter,  65  111.  544, 
But  if  the  promise  is  made  to  a 
trustee  for  the  beneficiary,  the 
former  alone  can  sue.  Porter  v. 
Raymond,  53  N.  H.  519;  Treat  v. 


Brewer  v.  Dyer,  7  Cush.  340  ;  Bo- 
hannon  v.  Pope,  42  Me.  96;  Steele 
V.  Clark,  77  111.  473 ;  Mason  v. 
Hall,  30  Ala.  601  ;  Exchange  Bank 
V.  Rice,  107  Mass.  41  ;  and  even 
though  the  contract  be  under  seal 


Stanton,  14  Conn.  445.  And  even  in  Wisconsin  and  some  other  states, 
substituted  trustees  must  sue  in  the  McDowell  v.  Lacy,  35  Wis.  175; 
name  of  their  predecessors,  with  Rogers  v.  Gosnell,  51  Mo.  469; 
whom  the  contract  was  made,  for  Coster  v.  Mayor  of  Albany,  43  N. 
the  benefit  of  the  estate.  Binney  Y.  411  ;  Thompson  v.  Thompson, 
V.  Plumly,  5  Vt.  500;  Devant  v.  3  Lea,  126;  see  Patterson  v. 
Guemrd,  i  Spear,  242  ;  IngersoU  v.  Triumph  Ins.  Co.,  64  Me.  503  ; 
Cooper,  5  Blachf.  420.  Gautzert  v.  Hoge,  73  111.  30 ;  Booth 
The  action  may  be  maintained  v.  Conn.  Mut.  Life  Ins.  Co.,  43 
either  by  the  promisee  or  such  third  Mich.  299;  Millard  v.  Baldwin,  3 
person.  Steene  v.  Aylesford,  i  Gray,  486  ;  but  not  if  the  third  per- 
Conn.  253;  Stroun  v.  Hartford  son  is  a  mere  stranger  to  the  con- 
Fire  Ins.  Co.,  33  Wis.  657 ;  Rogers  tract  and  only  incidentally  bene- 
v.  Gosnell,  51  Mo.  469.  The  third  fited  thereby.  Lake  Ontario  Shore 
j)erson  beneficiary  might  maintain  R.  R.  v.  Curtis,  80  N.  Y.  222. 
his  action  in  equity  upon  the  prom-  The  rule  is  the  same,  although 
ise  prior  to  the  code.  Clapp  v.  no  express  promise  be  proved, 
Lawton,  51  Conn.  95.  where  one  receives  money  or  prop- 
Now  the  person  with  whom  the  erty  to  the  use  of  a  third  person, 
contract  is  made  may  bring  the  Kountz  v.  Halthouse,  85  Pa.  St. 
action  without  joining  the  bene-  237  ;  Carnegie  v.  Morrison,  2  Mete, 
ficiary,  but  this  docs  not  take  away  401  ;  Weston  v.  Barker,  12  Johns, 
the  latter's  right  to  sue  in  his  own  278;    Durham    v.    Bishop,  47    Ind. 


54 


PA  K  TFIiS     TO    A  C  TIONS. 


an  action  in  A.'s  name,  tlu)ui;li  the  action  be  in  reality 
wholly  for  the  benefit  of  B.,  A.  being  the  party  on  the 
record,  can  not  be  looked  upon  as  a  mere  cipher,  and  B. 


21 1  ;  Bartlctt  v.  Matson,  i  Mo.  App. 

157- 

Where  one  procures  an  insurance 
policy,  loss  payable  to  another  as 
his  interest  may  appear,  either  the 
procurer  or  said  beneficiary  may 
sue  in  case  *of  loss.  Somes  v. 
Equitable  Safety  Ins.  Co.,  12  Gray 
532  ;  Brunswick  Sav.  Inst.  v.  Ins. 
Co.,  68  Me.  314;  Chamberlain  v. 
N.  H.  Fire  Ins.  Co.,  55  N.  H.  258  ; 
Westchester  Fire  Ins.  Co.  v.  Foster, 
90  III.  122;  Hammel  v.  Queen 
Ins.  Co.,  50  Wis.  243;  Newman  v. 
Ins.  Co.,  17  Minn.  126;  Pitney  v. 
Glen's  Falls  Ins.  Co.,  65  N.  Y.  6; 
Ins.  Co.  V.  Davenport,  2>7  Mich. 
612. 

Where  the  purchaser  of  prop- 
erty executes  his  notes  to  another 
than  the  seller,  at  the  latter's  re- 
quest, the  payee  is  the  proper  party 
to  sue  thereon.  Stevens  v.  Songer, 
14  Ind.  342. 

A  party  to  a  contract  under  seal 
only  can  maintain  an  action  thereon, 
as  he  has  the  legal  interest  therein. 
Northampton  v.  Elwell,  4  Gray, 
81 ;  Flynn  v.  North  American  Life 
Ins.  Co.,  115  Mass.  449;  La  Grange 
V.  Chapman,  11  Mich.  500;  Thomp- 
son V.  Thompson,  4  Heisk.  126; 
Holmes  v.  Fisher,  13  N.  H.  ii; 
Gov.  of  Arkansas  v.  Ball,  i  Hemp. 
545  ;  Agnew  v.  Leath,  63  Ala.  346  ; 
Hager  v.  Phillips,  14  111.  250.  A 
covenant  expressed  between  par- 
ties, but  for  the  benefit  of  a  third 
person,  cannot  be  sued  on  except 
in  the  name  of  one  of  the  pa'-iies. 


and  not  in  that  of  such  third  per- 
son. Smith' y.  Emery,  12  N.  J.  L. 
60;  National  Bank  v.  Segur,  39  N. 
J.  L.  175;  Harris  v.  Plant,  31  Ala. 
639;  Dick  V.  Reynolds,  4  Martin, 
N.  S.,  529. 

But  in  Iowa  and  California  the 
person  intended  to  be  secured  in 
any  bond  may  sue  thereon,  though 
his  name  be  not  mentioned  therein. 
Huntington  v.  Fisher,  27  Iowa, 
277;  Moorman  v.  Collier.  32  Iowa., 
139;  Baker  v.  Bartol,  7  Cal.  553; 
so  bonds  to  the  state.  Taaffe  v. 
Rosenthal,  7  Cal.  195 ;  Curiae  v. 
Packard,  29  Cal.  195  ;  MacBeth  v. 
Van  Sickle,  6  Nev.  135, 

A  trustee  of  real  est  tte  alone  can 
sue  and  defend  and  protect  the 
title  in  a  court  of  law,  the  cestui  que 
trust,  though  the  absolute  owner  in 
equity,  being  regarded  in  law  as  a 
stranger.  Hooper  v.  Scheimer,  23 
How.  235  ;  Cox  V.  Walker,  26  Me. 
504 ;  Beach  v.  Beach,  14  Vt.  28 ; 
Baptist  Soc.  V.  Hazen,  100  Mass. 
322  ;  Davis  v.  Charles  River  R.  R., 
1 1  Cush.  506 ;  Western  R.  R.  Co.  v. 
Nolan,  48  N.  Y.  517;  Church  v. 
Stewart,  27  Barb.  553  ;  Matthews 
V.  Ward,  10  G  &;  J.  443  ;  Mordecai 
V.  Parker,  3  Dev.  425  ;  Moore  v. 
Burnet,  11  Ohio,  334;  Adler  v. 
Sewell,  20  Ind.  598  ;  Kirkland  v. 
Cox,  94  111.  402  ;  Ponder  v.  McGru- 
der,  42  Ga.  242  ;  Ryan  v.  Bibb,  46 
Ala.  323 ;  Moody  v.  Farr,  33  Miss. 
192;  or  the  grantee  of  the  trustee, 
even  though  the  title  came  to  him 
in  breach  of  the  trust,  so  far  is  the 


GENERAL    RULES. 


55 


will  \  e  bound  by  A.'s  acts  and  admissions,  and  liable  to 
defeases  good  as  against  A.  {s)  For  "  the  plaintiff,  though 
he  says  that  he  is  a  trustee  of  another,  must,  in  a  court  of 
law,  be  treated  in  all  respects  as  the  party  in  the  cause. 
If  there  is  a  defense  against  him,  there  is  a  defense  against 
the  cestui  que  trust  who  uses  his  name,  it)  The  following 
instance  shows  the  strictness  with  which  the  party  on  the 
record  is  in  some  cases  treated  as  the  real  party  to  the 
suit. 

(j)  The  admission  of  equitable  replications  makes  it  now  often  possible  for 
B.  to  dispose  of  such  defenses. 

(/)  « Jibson  V.  Winter,  5  B.  &  Ad.  102. 

in  the  name  of  the  trustee,  though 
the  beneficiary  is  in  possession. 
Jones  V.  Cole,  2  Bailey,  330  ;  Munn 
V.  Lee,  5  Ga.  236  ;  Hoover  v.  Geesa- 
man,  17  Serg.  &  R.  251  ;  Foage  v. 
Bell,  8  Leigh,  604;  Thompson  v. 
Ford,  7  Ired.  367  ;  Jones  v.  Strong, 
6  Ired.  367 ;  Guphill  v.  Isbell,  8 
Rich.  L.  463;  Schley  v.  Lyons,  6 
Ga  530;  McRaeny  v.  Johnson,  2 
Fla.  520  ;  Parsons  v.  Boyd,  20  Ala. 
112;  Newman  v.  Montgomery,  5 
How.  (Miss.)  742;  Pressley  V.  Strib- 
ling,  24  Miss.  527  ;  Daniel  v.  Dan- 


rule  carried.  Gary  v.  Whitney,  48 
Me.  516;  Taylor  v.  King,  6  Munf. 
358  ;  Matthews  v.  McPherson,  65 
N.  C.  189  ;  Reece  v.  Allen,  10  111. 
241  ;  Phillips  V.  Ward,  51  Mo.  295. 
A  trustee  in  possession  must  sue 
for  all  injuries  to  the  possession. 
Davis  V.  Charles  River  R.  R.  Co  , 
II  Cush.  506  ;  Woodruff  v.  Orange, 
32  N.  J.  49.  If  the  beneficiary  is 
entitled  to  the  possession,  he  is  also 
entitled  to  maintain  such  suit  in 
Pennsylvania.  School  Directors  v, 
Dunkleberger,  6  Pa.  St.  29  ;  Pres- 


byterian Cong.  V,  Johnston,  i  Watts    iel,  6  B.  Mon.  230. 


&  S.  56.  And  if  the  beneficiary  is 
in  the  actual  possession  he  may 
maintain  such  action.  Cox  v, 
Walker,  26  Me.  504 ;  Stearns  v. 
Palmer,  10  Mete.  32. 

But  a  trustee  of  personal  estate 
entitled  to  its  possession  may  main- 
tain action  for  its  delivery  to  him 
even  against  the  beneficiary.  Beach 
V.  Beach,  14  Vt.  28  ;  Western  R.  R, 
Co.  V.  Nolan,  48  N.  Y.  513;  White 
V.  Albertson,  3  Dev.  241  ;  Guphill 
V.  Isbell,  8  Rich.  L.  463;  Ryan  v. 


In  suits  in  equity,  in  relation  to 
the  trust  estate  by  or  against  stran- 
gers, both  the  trustees  and  all  the 
beneficiaries  must  unite  to  repre- 
sent the  whole  interest  therein, 
Dunn  V.  Seymour,  3  Stockt.  220; 
Harris  v.  McBane,  66  N.  C.  334; 
Sprague  v.  Tyson,  44  Ala.  338; 
Martin  v.  Reed,  30  Ind.  2i8. 

A  trustee  contracting  without  any 
reference  in  the  contract  made  to 
the  beneficiaries  or  to  the  trustee- 
ship may  sue  and   defend  thereon 


Bibb,  46  Ala  343  ;  Presley  v.  Strib-  in  his  own  name.  Brown  v.  Cherry, 

ling.  24  Miss.  257;  Pace  v.  Pierce,  56  Barb.  635  ;  Rawlings  v,  Fuller, 

49  Mo.  393.     All  actions  for  injury  31  Ind.  234;  Linch  v.  Thomas,  27 

to  the  personal  property,  its  deten-  111.  457. 
tion  or  conversion  must  be  brought 


56  PARTIES     TO    ACTIOXS. 

The  Statute  of  l''iaiuls  re(]iiircs  that  a  contr.ict  lor  the 
sale  of  i;-oocls  should  be  signed  by  the  party  to  be  char^^^cd, 
or  his  agent.  It  is  also  settled  on  this  statute  that  one 
contracting  party  can  not  sign  as  agent  for  the  other. 
An  auctioneer  signed  as  agent  for  tiie  party  to  be  charged, 
f".  r.,  the  purchaser  of  the  goods.  His  signature  was  in 
itself  sufficient ;  but  the  purchaser  was  sued  for  the  price, 
not  in  the  name  of  the  vendor  but  in  that  of  the  auctioneer, 
(;/)  who  of  course  sued  for  the  benefit  of  the  vendor.  It 
was  held  that  in  such  an  action  the  contract  could  not  be 
considered  signed  by  an  agent  of  the  defendant's,  since  it 
was  signed  bv  the  plaintiff,  who  must  be  treated  as  a 
party  to  the  contract. 

The  general  principle  of  the  courts  of  law  is  to  disre- 
g^ard  equitable  interests.  A  defendant  may  have  an 
answer  to  a  plaintiff's  claim,  which  is  perfectly  good  in  a 
court  of  equity,  and  3-et  can  not  be  made  in  a  court  of  law, 
and  a  plaintiff  who  could  completely  dispose  of  a 
[45]  defendant's  answer  to  his  case  in  a  court  of  equity, 
may  not  be  able  to  reply  to  it  in  an  action  at  law  ; 
but  the  application  of  this  principle  has  by  degrees  been 
modified. 

Independently  of  statute  the  common  law  courts  are 
often  compelled  to  recognize  the  rules  of  equity. 

Thus,  if  an  action  be  brought  by  a  vendee  for  the 
deposit,  the  court  will  inquire  whether  the  vendor's  title 
would  be  good  in  equity.  So,  as  the  right  of  a  person 
who  has  insured  a  ship  and  then  sold  it  before  loss,  to  sue 
upon  the  policy,  depends  upon  the  question  whether  or 
not  he  sues  as  a  trustee  for  the  vendee,  such  a  person 
would  not  be  allowed  to  recovei  in  an  action  unless  he  is 
suing  as  a  trustee,  {x)  In  cases  ttirning  on  the  bank- 
ruptcy laws  it  frequently  becomes  necessary  to  take 
equitable  as  well  as  legal  rights  into  consideration.  If, 
for  example,  the  bankruptcy  of  the  plaintiff  is  pleaded,  it 
is  a  good  reply,  independently  of  the  statute  allowing 
equitable  replications,  that  the  plaintiff  is  suing  merely  as 

{u)  Farebrolhev  V.  Simmons,  5  15.  &  Aid.  33,  and  see  CliarterV. 
(.r)  Powles  V.  Innes,  1 1    .M.  tV  \\.  10. 


GENERAL     RULES. 


57 


a  trustee,  ( j)  since  those  things  onl}-  pass  to  a  trustee  in 
bankruptcy  in  which  the  bankrupt  is  beneficially  inter- 
ested, [s)  Statutes  have  still  further  extended  the  recog- 
nitirm  of  equitable  interests,  and  in  so  far  have  broken  in 
upon  the  rule  that  the  courts  look  only  to  the  parties  on 
the  record. 

The  Common  Law  Procedure  Act,  1854,  enacts  that  {a) 
"  it  shall  be  lawful  for  the  defendant  or  plaintiff  in  re- 
plevin in  any  cause  in  any  of  the  superior  courts  in  which, 
if  judgment  were  obtained,  he  would  be  entitled  to  relief 
against  such  judgment  on  equitable  grounds,  to  plead  the 
facts  which  entitle  him  to  such  relief  by  way  of  defense, 
and  the  said  courts  are  hereby  empowered  to  receive  such 
defense  by  waj-  of  plea,"  {b)  and  that  "  the  plaintiff 
may  reply,  in  answer  to  any  plea  of  the  defend-  [46] 
ant,  facts  which  avoid  such  plea  upon  equitable 
grounds."  (r) 

Many  defenses  may  now  be  pleaded  which  could  not, 
before  the  statute,  have  been  raised  at  common  law. 
Thus,  where  a  defendant  has  been  made  liable  only  by 
the  occurrence  of  some  mistake  ;  {d)  where  a  person  who 
is  a  surety  does  not  appear  to  be  so  on  the  face  of  the 
instrument;  (c)  and  in  other  cases,  defenses  can  be  raised 
which  would  not  formerly  have  been  available  in  an 
action.  The  rights,  again,  and  liabilities  of  assignees  of 
del)ts  who  must  sue  in  the  name  of  their  assignors,  can 
now  often  be  made  to  appear  on  the  pleadings,  and  hence 
the  rule,  that  each  case  must  be  decided  as  if  the  parties 
on  the  record  were  the  only  persons  interested,  often  fails 
to  h(;ld  good.  This  effect  of  the  admission  of  equitable 
picas,  tvc,  is  most  clearly  seen  in  the  rules  as  to — 

(  v)  Sims  V.  Thomas,  I2  A.  &  E.  535  ;  Boyd  v.  Mangles,  lA  M.  &  W.  337  ; 
Tainhim  v.  Hurst,  S  M.  &  W.  743  ;  D'Arnay  v    Cliesneau,  13  M.  &  W.  796. 

(2)  .See  Chapter  IX. 

(d)  C.  L.  P.  A.,  1354,  ss.  33,  85.  See,  also,  Policies  of  Assurance  Act,  1867 
(30  &  31  Vict.  c.  144). 

(l<)  C.  L.  P.  A..  1854,  s.  83. 

(<■)  Common  Law  Procclurc  Act,  1854,  s.  85. 

(</)  Wake  V.  Ilarrnp,  i  II.  &.  C.  202  ;  30  L.J.  273,  Ex.  ;  Steele  v.  Haddock, 
:o  Ex.  643  ;  24  L.  J.  78.  V.\. 

le)  I'oolcy  V.  Harradine,  7  E.  i<:  IJ.  431  ;  26  L.  J.  is^^i,  Q.   H. 


58  PARTIES     TO    ACTIONS. 

Set-off. — A  defendant  sncd  for  a  "  debt  "  due  to  the 
plaintiff,  may  set-off  debts  due  from  the  plaintifil  to  a 
trustee  for  the  defendant ;  (/)  and  a  debt  due  to  the  de- 
fendant from  the  person  on  whose  behalf  the  plaintiff  is 
suing  as  trustee,  {g)  But  the  defendant  can  not  set-off 
debts  due  from  the  plaintiff  where  the  latter  is  suing-  as 
trustee  for  a  person  to  whoai  he  has  assigned  the  debt  for 
which  he  is  suing,  and  the  set-off  has  accrued  due  subse- 
quently to  notice  of  the  assignment,  and  in  respect  of  an 
independent  transaction.  Such  a  set-off  may  be  met  by  a 
replication  that  the  plaintiff  is  suing  on  behalf  of  the 
assignee  of  the  debt,  {h) 

The  effect,  therefore,  on  the  right  of  set-off  ol 
[47]      admitting   equitable   pleas   is,  in   an  action   by  A. 
against  X.  for  a  debt,  as  follows  : — 

X.  may  set-off  against  the  claim  of  A.  a  debt  due  from 
A.,  not  to  X.,  but  to  M.,  a  trustee  for  X. 

X.  may  set-off  against  the  claim  of  A.  a  debt  due  to  X., 
not  from  A.,  but  from  M.  (the  real  plaintiff)  on  whose  be- 
half A.  is  suing. 

X.  may  not  set-off  a  debt  due  to  him  from  A.,  if  A.  is 
really  suing  on  behalf  of  M.  when  the  set-off  has  become 
due,  subsequently  to  notice  given  to  X.  of  the  assignment, 
and  in  respect  of  an  independent  transaction. 

But  X.  may  set-off  against  the  claim  of  A.  (even  though 
A.  is  suing  as  trustee  for  M.)  debts  due  from  A.  to  X. 
which  have  become  due  before  notice  of  an  assignment  to 
M.  of  the  debt  for  which  the  action  is  brought,  {if 


(/)  Cochrane  v.  Green,  9  C.  B.,  N.  S.,  448  ;  30  L.  J,  97,  C.  P. 
{g)  Agra  and  Masterman's  Bank  v.  Leighton,  L.  R.  2  Ex.  56;  36  L.  J.  33, 
Ex. 

{h)  Watson  v.  Mid-Wales  Rail.  Co.,  L.  R.,  2  C.  P.  593  ;  36  L.  J.  285,  C.  P. 
\i)  Cavendish  v.  Geaves,  24  Beav.  163  ;  27  L.  J.  314,  Ch. 

I.  The  defendant  must  own  and  Beall,  2  Kelly,  134.     And  he  must 

control  the  claim  he   proposes  to  support  it  as  fully  as  though   he 

set  off,  so  that  the  plaintiff  is,  as  to  were  bringing  his  separate  action 

that  claim,  his  debtor.     McGraw  v,  upon  it.  Kelly  v.  Garrett,  i  Oilman, 

Pettibone,   10   Mich.  530;    Kimble  649. 

V.  Glover,  13  Rich.  191  ;  Tinsley  v.  His  right  to  sue  on  such  demand 


GENERAL    RULES. 


bQ 


From  the  words  of  the  Common  Law  Procedure  Act, 
1854,  it  might  be  inferred  that  any  defense  or  answer 
which  is  available  in  a  court  of  equity  could  be  pleaded 
m  an  action.  But  this  is  not  so  ;  for  the  right  to  use  equit- 
able pleas,  replications,  &c.,  is  subject  to  the  following  re- 
strictions : — 

First.  Courts  of  law  will  allow  pleadings  upon  equitable 
grounds  only  where  by  the  judgment  at  law  they  can  do 
complete  and  final  justice  and  settle  all  the  equities  be- 
tween the  parties  ;  they  have  no  jurisdiction  to  pronounce 
a  temporary  or  conditional  judgment,  and  no  process  by 
which  terms  or  conditions  can  be  enforced.  Accordingly, 
they  will  allow  a  pleading  on  equitable  grounds  only 
where  a  court  of  equity  under  similar  circumstances 
would  decree  an  absolute,  unconditional,  and  perpetual 


set  off  may  be  either  legal  or 
equitable  Bell  v.  Horton,  i  Ala. 
413;  Carew  v.  Northrup,  5  Ala. 
367.  And  he  may  set  off  a  demand 
which  he  absolutely  owns,  not 
having  the  strict  legal  title.  Mur- 
ray V.  Williamson,  3  Binn.  135. 

Whenever  the  assignee  of  any 
bond,  bill  or  note  can  recover  in  his 
own  name  as  assignee  and  appro- 
priate the  proceeds  to  his  own  use, 
he  may  set  off  such  demand.  Farr 
V.   Hemmingway,  2  Const.  (S.  C.) 

753- 

A  defendant  who  has  acquired 
debts  simply  to  set  them  off,  will 
not  be  allowed  to  do  so.  Strauss 
V.  Eagle  Ins.  Co.,  5  Ohio  St.  59; 
Adams  v.  McGrew,  2  Ala.  675  ;  Mc- 
Dade  v.  Mead,  18  Ala.  214. 

An  agent  who  did  not  disclose 
his  principal,  and  is  liable  on  the 
contract,  cannot,  when  sued,  set 
off  plaintiff's  debt  to  such  princi- 
pal.   Forney  v.  Shipp,  4  Jones  527. 


And  when  a  principal  i.9  sued,  h( 
cannot  set  off  the  plaintiff's  debt  tc 
his  agent.  Carmen  v.  Garrison,  13 
Pa.  St.  158. 

In  an  action  against  a  defendant 
individually,  he  cannot  set  off  a 
debt  due  him  as  an  administrator. 
Thomas  v.  Hopper,  5  Ala  442 ; 
Wood  v.  Hardy,  11   La.  Ann.  760. 

When  an  administrator  sues  for 
a  debt  which  accrued  after  the 
death  of  the  intestate,  the  defendant 
cannot  set  off  a  debt  due  him  by 
the  deceased  before  his  decease. 
Fry  V.  Evans,  8  Wend.  530;  Wolf- 
ersbergcr  v.  Buchcr,  10  Serg.  & 
R.  10;  Shaw  V.  (Jookin,  7  N.  H. 
l6«;  Brown  v.  Garland,  I  Wash. 
(Va.)  217;  Burton  v.  Chiin,  Hard. 
(Ky.)  252;  Mills  v.  Lumjjkin,  i  Ga. 
5ri5  Rapier  v.  Holland,  Minor, 
176;  Dayhuff  v.  Dayhuff,  27  Ind. 
158;  Cook  V.  Lovell,  11  Iowa  81; 
Bizzell  V.  Stone,  12  Ark.  378. 


6o  PARTIES     TO     ACTIONS. 

[48]  injunction  ;  (/•)  that  is,  where  a  judgment  in  favor 
of  the  plaintiir,  or  in  favor  of  the  defendant  (the 
only  decision  which  a  court  of  law  can  give),  would 
dispose  of  the  whole  matter  as  between  the  parties  to  the 
action.  It  is,  however,  enough  if  the  equitable  grounds 
entitle  the  defendant  to  absolute  and  complete  relief  against 
the  jilaintifl',  although  against  other  parties,  strangers  to 
the  action,  equities  remain  unsettled.  (/)  But  an  equitable 
jileading  will  not  be  allowed  where  it  is  impossible  to 
do  justice  without  bringing  other  persons  before  the 
court,  {in) 

Many  defenses,  therefore,  available  in  equity  can  not  be 
pleaded,  because  a  mere  judgment  for  the  plaintiff"  or  for 
the  defendant  would  not  dispose  of  the  matter  between  the 
parties.  Thus,  in  an  action  on  a  covenant  in  a  lease  brought 
for  rent  and  for  not  repairing  a  defense  on  equitable 
grounds  of  a  part  performed  covenant  to  surrender,  can 
not  be  pleaded,  because  in  equity  the  defendant  would  be 
entitled  to  an  injunction  only  upon  terms  of  executing  the 
surrender.  (;/)  So  a  plea  that  the  defendant  signed  a  writ- 
ten contract  under  a  mistake  as  to  its  contents  can  not  be 
allowed,  because  the  remedy  in  equity  would  be  to  reform 
he  contract,  {o)  and  numerous  other  examples  might  be 
^iven  of  pleas  which  on  the  same  principle  can  not  be 
pleaded. 

Secondly.  An  equitable  replication,  &c.,  can  not  be  al- 
lowed w^hich  sustains  an  equitable  claim.  If  a  plaintiff 
brings  an  action  to  which  there  is  a  good  defense,  but 
there  are  matters  showing  that  he  has  a  good  equitable 
claim,  he  should  go  to  a  court  of  equity  in  the  first  in- 
stance. (/)  For  "  an  equitable  replication  can  not  be 
pleaded  to  a  legal  plea,  if  it  merely  shows  that  the  plain- 

(/')  Bullen,  Pleadinfijs,  3rd  ed.,  568  ;  Wodehouse  v.  Farebrother.  5  E.  &  B. 
277  ;  25  L.  J.  i8,  Q.  B.  ;  Mines  Royal  Society  v.  Magnay,  10  Ex.  489  ;  24  L. 
J.  7.  Ex. ;  Jeffs  v.  Day,  L.  R.  i,  Q.  B.  372  ;  35  L.  J.  99,  Q.  B. 

(/)  Sloper  V.  Cottrell,  6  E.  &  B.  501  ;  26  L.  J.  -],  Q.  B. 

[m)  Schlumherger  v.  Lister,  30  L.  J.  3,  Q.  B.  :  2  E.  &  E.  870. 

(«)  Mines  Royal  Society  v.  Magnay,  10  Ex.  489  ;  24  L.  J.  7,  Ex. 

(o)  Perez  v.  Oleaga,  11  Ex.  506  ;  26  L.  J.  65,  Ex. 

[p)  Hunter  v.  Gibbons,  i  H.  &  N.  459,  See  judgment  of  Bramwell,  B. 
%(A  ;  Bartlett  V.Wells,  I  B.  &  S.  S43  ;  judgment  of  Crompton,  J. 


GENERAL     RULES.  t\ 

tiff  has  some  right  in  equity  which  is  ground  for  applying 
to  a  court  of  equit}'." 

The  meaning  of  this  is,  that  though  it  is  now  [49] 
possible  to  raise  equitable  defenses,  &c.,  in  an  action 
at  law,  it  is  not  possible  to  commence  an  action  in  virtue 
of  a  merely  equitable  right.  The  law,  to  express  the  mat- 
ter technically,  allows  equitable  pleadings,  but  does  nol 
allow  an  equitable  declaration.  Hence,  a  plaintiff  may 
show,  on  equitable  grounds,  that  the  defendant's  plea  or 
defense  is  inadmissible.  But  he  can  not  make  any  reply  to 
the  defendant  which  shows  that  his  own  claim  depends 
not  on  a  legal,  but  on  an  equitable  right.  The  statute  has 
neither  directly  nor  indirectly  trenched  upon  the  rule  that 
no  action  can  be  brought  except  for  the  infringement  of  a 
legal  or  common  law  right. 

Thus,  in  an  action  of  trespass  for  digging  minerals 
under  the  plaintiff's  land,  the  defendant  pleaded  the 
Statute  of  Limitations,  and  the  court  refused  to  allow  a 
replication  that  the  trespasses  were  fraud ulentl}^  c(mi- 
cealed  until  within  six  years,  because  the  replication 
showed  that  the  legal  right  was  barred,  and  the  only 
right,  if  any,  was  a  right  in  equity  to  an  account,  [q)  So 
in  an  action  for  goods  sold,  a  replication  on  equitable 
grounds  to  the  plea  of  infancy,  that  the  defendant  induced 
the  plaintiff  to  supply  the  goods  by  fraudulently  repre- 
senting himself  to  be  of  full  age,  was  held  bad  as  setting 
up  matter  for  a  suit  in  equity  instead  of  a  cause  of  action 
at  law  ;  (r)  and  in  an  action  against  an  executor  for  goods 
sold  to  the  testator,  a  replication  on  equitable  grounds  to 
a  plea  of  the  Statute  of  Limitations,  that  the  causes  of 
action  accrued  six  years  before  the  testator's  death,  and 
that  he  bequeathed  to  the  defendant  sufficient  money  on 
trust  to  pay  his  debts,  was  held  bad.  {s) 

In  some  of  these  cases  there  were  also  other  grounds 
for  the  decisions  given,  but  they  all  recognise  the  prin- 
ciple,   that  where   a    plaintiff's   case    depends    upon    an 

(q)  Hunter  v.  flihlions,  I  II.  &  N.  459  ;  26  L.  T-  I.  Ex. 
(r)  Bartlettv.  Wells,  r  H.  ^t  S.  836;  31  L.  J.  57,  Q.  B. 
(/)  Gulliver  v.  Gulliver,  i  H.  &  N.  174  ;  25  L.  J.  341,  Ex. 


62  PAKriILS     TO    ACTIONS. 

[50]      equitable  claim,  he  must  go  to  a  court  of  equity,  and 
not  bring  an  action  at  law.  (/") 


Rule  4.-7-An  action   may  be    brought  for   every 
infringement  of  a  "  legal  "  (?/)  right/ 

"  For  all  injuries  done  to  a  man's  person,  reputation  or 
property,  he  shall  have  an  action."  [x)  For  everything, 
therefore,  which  is  recognized  by  the  common  law  as  an 
"  injury  "  in  the  widest  sense  of  that  term,  as  including 
within  it  both  breaches  of  contract  and  torts,  there  is  a 
right  of  action  ;  or,  in  other  words,  any  one  who  has 
suffered  an  invasion  of  his  legal  rights  can  bring  an  action 
against  the  person  by  whom  they  have  been  invaded. 

"  If  a  person  has  a  right,  he  must  of  necessity  have  a 
means  to  vindicate  and  maintain  it,  and  a  remedy  if  he  is 
injured  in  the  exercise  or  enjoyment  of  it,  and,  indeed,  it  is 
a  vain  thing  to  imagine  a  right  without  a  remedy  ;  for 
want  of  right,  and  want  of  remedy  are  reciprocal.     .     .     . 

"  Every  injury  imports  a  damage,  though  it  does  not 
cost  the  party  one  farthing,  and  it  is  impossible  to  prove 
the  contrary  ;  for  a  damage  is  not  merely  pecuniary,  but 
an  injury  imports  a  damage  when  a  man  is  thereby 
hindered  of  his  right.  As  in  an  action  for  slanderous 
words,  though  a  man  does  not  lose  a  penny  by  reason  of 
the  speaking  of  them,  yet  he  shall  have  an  action.     So,  if 

{t)  Bullen,  Pleadings,  3rd  ed.,  566-574. 

(u)  See  the  foregoing  rule  as  to  the  distinction   between   legal  (or  common 
law)  and  equitable  rights. 

{x)  Bacon,  Abr.,  Actions,  B. 

I.  But  the  private   citizen   must  Napier  v.  Poe,  42  Ga.  178;  Ferry 

become  a  relator  and  prosecute  in  v.  Williams,  41   N,  Y,  333  ;  but  see 

the  name  of  the  state  to  enforce  a  Sanger  v.   County  Comrs.,  25   Me. 

private  right  which  involves  public  296  ;  Heffner  v.  Commonwealth,  28 

right.     People  V  Collins,  19  Wend.  Pa.   St.    108;    Wellington   v.    Peti- 

58;  State  V.   Haben,  22   Wis.  667;  tioners,    16    Pick.    105;    Miller    v. 

State  V.  Cincinnati,  19  Ohio.  188;  Grandy,  13  Mich.  550. 
Glencoe    v.    People,    78    111.   390; 


GENERAL    RULES.  63 

a  man  gives  another  a  cuff  on  the  ear,  though  it  cost  him 
nothing — no,  not  so  much  as  a  little  diachylon — yet  he  shall 
have  his  action,  for  it  is  a  personal  injury.  So,  a  man  shall 
have  an  action  against  another  for  riding  over  his  ground, 
though  it  do  him  no  damage :  for  it  is  an  invasion  of  his 
property,  and  the  other  has  no  right  to  come  there ;  and 
in  these  cases  the  action  is  brought  vi  et  armis.  But 
tor  invasion  of  another's  franchise,  trespass  vi  et  armis 
does  not  lie,  but  an  action  of  trespass  on  the  case:  as 
where  a  man  has  retornia  brevium,  he  shall  have  an  action 
against  any  one  who  enters  and  invades  his  franchise, 
though  he  lose  nothing  by  it."  {z) 

"  With  respect  to  every  description  of  rights  "  (it  has 
been  said),  "  actual  perceptible  damage  is  not  indispensa- 
ble as  the  foundation  of  an  action.  It  is  sufficient  to  show 
the  violation  of  a  right,  in  which  case,  the  law  will  pre- 
sume damage,"  {a) 

The  doctrine  that  every  violation  of  a  right,  i.  e.,  every 
mjury,  is  actionable,  will  be  found  perfectly  correct,  if  it 
be  remembered  that  rights  are  of  two  kinds ;  i.  e.,  that 
while  some  rights  are  rights  to  have  certain  acts  done  or 
left  undone  by  other  persons,  other  rights  are  merely 
rights  not  to  be  materially  or  perceptibly  damaged  by 
certain  acts  or  omissions  on  the  part  of  others.  To  put 
the  same  thing  in  another  form,  some  acts  are  infringe- 
ments upon  rights,  /.  e.,  are  actionable,  whether  they 
inflict  damage  or  loss  upon  the  person  aggrieved  or  not , 
other  acts  become  infringements  on  rights,  i.  e.,  are 
actionable,  only  in  consequence  of  causing  actual  damage 
or  loss. 

The  same  distinction  is  sometimes  put  in  a  different 
form.  To  make  up  a  cause  of  action  there  must  exist, 
it  is  said,  both  damage  and  injury,  and  as  an  action  docs 
not  lie  for  damage  without  injury,  so  also  it  does  not  lie 
for  injury  without  damage. 

(«)  Ash})y  V.  White,  i  Smith,  L.  C,  6th  ed.,  249.  250.  per  IIoi.t,  C.  J. 
(a)  Lambert  v.  Bessey,  4  Edw.  IV.,  folio  7,  cited  Smith  v.  Kenrick,  18  L.J. 
•  75.  C.  P. 


64  'RU^TJES     TO    ACTIONS. 

But  in  order  to  make  the  distinction  as  thus  stated 
hold  good,  the  word  chunagc  must  be  used  ambiguously, 
as  meaning  sometimes  actual  perceptible  loss,  and  some- 
times what  is  called  damage  implied  by  law  ; 
[52]  /.  (•.,  loss  whicli.  though  it  may  not  actually  exist,  is 
assumed  by  a  tiction  of  law  always  to  exist  as  the 
result  of  certain  proceedings;  c.  g.,  a  breach  of  contract. 
an  assault,  cSlC.  :  and,  though  it  is  true  that  no  action  lies 
except  for  some  act  accompanied  either  by  actual  damage 
or  by  damage  implied  by  law,  still  the  fact  remains,  that 
certain  acts  are  considered  by  the  law  always  to  cause 
damage  (whether  they  really  cause  it  or  not),  and,  there- 
fore, are  always  actionable ;  whilst  other  acts  are  con- 
sidered injurious,  and  are  therefore  actionable  only  when 
they  cause  actual  or  perceptible  damage. 

Hence,  in  whatever  shape  the  distinction  insisted  upon 
be  expressed,  it  comes,  in  fact,  to  the  same  thing  ;  i.  e., 
that  some  acts  are  injurious  and  actionable,  whether  they 
cause  damage  or  not,  whilst  other  acts  become  injuries, 
and  therefore  actionable,  only  on  account  of  the  damage 
which  they  cause. 

"  There  is  no  doubt,"  it  has  been  said,  "  that  the 
right  of  action  accrues  whenever  a  person  interferes  with 
his  neighbor's  rights,  as  for  example,  by  stepping  on  his 
land,  or  ...  .  interfering  with  his  right  to  vote, 
and  this  though  no  actual  damage  may  result.  But  for  a 
man  to  dig  a  hole  on  his  own  land  is  a  perfectly  lawful 
act  of  ownership,  and  it  only  becomes  a  wrong  if  it  injures 
his  neighbor,  and  since  it  is  the  injury  itself  which  gives 
rise  to  the  right  of  action,  there  can  be  no  right  of  action 
unless  the  damage  is  of  an  appreciable  amount.  A  person 
may  build  a  chimney  in  front  of  your  drawing-room,  and 
the  smoke  from  it  may  annoy  you,  or  he  may  carry  on  a 
trade  next  door  to  your  house,  the  noise  of  which  may  be 
inconvenient ;  but  unless  the  smoke  or  noise  be  such  as  to 
do  you  appreciable  damage,  you  have  no  right  of  action 
against  him  for  what  is  in  itself  a  lawful  act."  {b) 

{b)  Smith  V.  Tbackerah,  L.  R.  i.  C.  P.  566  ;  per  Erle.  C.  J. 


GENERAL      RULES.  65 

It   is   impossible   to   lay   down   any  decisive  test   hy 
which  to  distinguish  acts  which  are  injuries,  and  there- 
fore actionable  in  themselves,  from  acts  which  are 
not  injuries  in  themselves,   but  which  become  in-      [53] 
juries,  and   therefore   actionable,    only  when   they 
cause  damage. 

The  characteristic  by  which  some  acts  which  are 
injuries  in  themselves  may  be  known  is,  that  they  would, 
it  continued,  bar  the  legal  rights  of  the  person  aggrieved 
by  them.  Thus  a  trespass  on  a  person's  lands,  interference 
with  the  rights  of  commoners,  the  diversion  of  a  stream  of 
water,  would,  if  repeated,  bar  the  legal  rights  ot  the  land- 
owner, the  commoner,  or  the  persons  entitled  to  the  use 
of  the  stream.  Hence,  for  such  acts  an  action  may  be 
brought  by  a  person  aggrieved,  even  though  he  suffers  no 
material  damage  or  loss  thereby,  ic) 

The  meaning  of  the  rule,  as  well  as  the  difference 
between  acts  which  are  actionable  in  themselves,  and  acts 
which  are  actionable  only  when  the}'  cause  damage,  is 
best  seen  from  examples. 

A  breach  of  contract  is  always  an  injury,  and,  therefore, 
upon  the  breach  of  a  contract,  a  right  of  action  vests 
without  any  special  damage,  and  the  plaintiff"  is  entitled 
to  have  a  verdict  for  nominal  damages,  even  though  he 
docs  not  prove  any  actual  damage  at  the  trial,  {d') 

These  nominal  damages  are  so  pure  a  fiction  that 
when  the  claim  {e.g.,  a  debt)  due  upon  a  contiacthas  been 
paid,  the  creditor  can  not  sue  for  nominal  damages  for  its 
detention. 

The  right  to  sue  for  every  breach  of  contract  is  inde- 
pendent of  the  nature  of  the  contract  sued  upon.  The 
agreement  may  be  express  or  implied,  it  may  be  made  by 
deed,  or  by  word  of  mouth,  but  whatever  its  nature,  it 
will  always  give  a  right  of  action  when  broken.  Even  an 
action  in  form  for  tort,  if  it  be  in  substance  an  action  for 
breach  of  contract,  will  lie,  even  though  no  actual  damage 

(c)  Ilarrop  v.  Hirst,  I..  \\.  4,  Kx.  43  ;  38  L.  J.  I,  Ex. 

(</)  Marzctti  v.  Williams,  i  B.  &  Ad.  423,  judgment  of  Tenterden,  C.  J., 
Beaumont  v.  flrcalhcad,  2  C.  B.  4(^4  ;   15  I..  J.  130,  C.  P. 


66  PARTIES     TO    ACTIONS. 

has  arisen  from  the  breach  ;  {e)  the  principle  being,  that  a 
person  who  makes  a  contract  is  bound  to  perform  it, 
[54]  and  if  he  docs  not  do  so,  is  liable  to  an  action  for 
his  nc>;lcct  of  duty.  (/) 

An  assault,  trespass  to  land,  conversion  of  goods,  or 
the  publication  of  a  libel,  are  in  themselves  injuries,  and 
actionable,  irrespective  of  the  damage  which  they  may 
cause. 

Acts  of  fraud,  on  the  other  hand,  or  negligence,  are 
not  necessarily  injurious,  and  only  become  so  by  reason 
of  actual  damage  or  loss  caused  to  the  person  aggrieved. 

The  distinction  between  acts  actionable  in  themselves, 
and  acts  actionable  because  they  cause  loss,  is  seen  in  the 
diflference  between  libel  and  slander. 

Libel,  or  the  publication  by  one  person,  by  means  of 
printing,  writing,  pictures,  or  the  like  signs,  of  matter 
defamatory  to  another  {g)  is  actionable,  whether  it  cause 
damage  to  the  person  libeled  or  not.  Slander,  or  the 
utterance  by  one  person,  by  means  of  words  spoken,  of 
matter  defamatory  to  another  (//)  is  (subject  to  certain 
exceptions)  not  actionable,  unless  actual  loss  is  caused  to 
the  person  slandered.  In  other  words,  a  man  has  a  i-ight 
to  insist  absolutely,  that  defamatory  matter  tending  to 
disparage  him  shall  not  be  published  in  print,  and  if  such 
matter  be  published,  he  may  bring  an  action  for  such  pub- 
lication irrespective  of  its  results.  But  a  man  has  not  a 
right  to  insist  absolutely  that  nothing  defamatory  shall  be 
said  of  him.  The  whole  extent  of  his  right  is  the  right 
not  to  be  damnified  by  the  utterence  of  defamatory 
matter.  He  can  not,  therefore,  bring  an  action  for 
slander  unless  the  slander  has  caused  him  actual  loss. 
To  publish  in  print  of  another,  that  he  is  a  low  fellow,  a 
blackguard,  a  disgrace  to  the  town,  &c.,  is  actionable  .  to 


(<r)  Marzetti  v.  Williams,  I  B.  &  Ad.  41/]. 

(/)  Compare  Bally  v.  De  Crespigny,  L.  R.  4,  Q.  B.  185.  Canham  v.  Barry 
24  L.  J.  106,  C.  P.,  judgment  of  .Maule,  J.  ;  Mayor  of  Berwick  v.  Oswald  3  E 
i  B.  665  ;  23  L.  J.  24.  Q.  B. 

(^)  3  Bl.  Com.  T25. 

<h)  Ibid.  123  ;  Bullen,  Pleadings.  3rd  ed.,  301,  302. 


GENERAL      RULES.  67 

say  tne  same  things  of  another,  is  not  actionable,  unless 
actual  damage  result  to  him  from  the  language  used. 

Causes  of  Action  arising  beyond  the  Jurisdiction. 

A  person  may  have  a  cause  of  action  against  an-      [55] 
other  on  account  of  matters  which  took  place  either 
in  part  or  wholly  without  the  jurisdiction  of  our  courts ; 
e.  g.,  for  the  breach  of  a  contract  made  in  Scotland,  or  for 
an  assault  committed  in  France. 

The  general  principle  is,  that  a  local  {i)  action  can  not 
be  brought  in  respect  of  a  cause  of  action  arising  beyond 
the  jurisdiction  of  our  courts  ;  but  that  a  transitory  action 
can  be  brougnt  b}'  any  person  whatever  in  respect  of 
causes  of  action  arising  either  wholly  or  in  part  beyond 
their  jurisdiction. 

The  effect  of  this  principle  is,  that  an  action  does  not 
lie  for  any  wrong  connected  with  land  situated  out  of  Eng- 
land,— e.  g.,  for  the  forcible  entry  into  a  house  in  Canada  ; 
but  that  an  action  does  lie  for  the  breach  of  any  contract 
made  or  assault  committed, — e.  g.,  in  Scotland  or  in 
France. 

Nothing  depends  upon  the  nationality  of  the  par- 
ties, (jy 

The  right  of  an  Englishman  to  sue  a  foreigner,  or  ol 
one  foreigner  to  sue  another,  or  to  sue  an  Englishman,  for 
the  breach  of  a  contract  made  abroad  has  long  been  com- 
pletely estabHshed. 

The  right  of  aliens  to  sue,  and  their  liability  to  be 
sued  in  our  courts  for  wrongs  committed  abroad,  is  now 
equally  well  settled.  "  The  right  of  all  persons,  whether 
British  subjects  or  aliens,  to  sue  in  the  English  Courts  for 
damages  in  respect  of  torts  committed  in  foreign  countries, 
has  long  since  been  established  ;  and  as  is  observed  in  the 

(j)  As  to  alien  enemies,  see  p. 

I.  A  contract  to  which  both  par-  Allen,  450;  Wclll)orn  v.  Tindell,  I 
ties  are  aliens  maybe  enforced  in  a  Mo.  215.  So  an  alien  may  sue  any 
«tate  court.     Roberts  v.  Kniyhts,  7     personal  action  in  the  United  States 


68 


PARTIES     TO    ACTIONS. 


notes  to  ^^ostvn  v.  Fabrigas,  (/)  there  seems  to  be  no  rea- 
son why  aliens  should  not  sue  in  England  for  personal  in- 
juries done  to  them  by  other  aliens  abroad,  when  such  in- 
juries are  actionable  both  by  the  law  of  England  and 
[56]  also  by  the  law  of  the  country  where  they  are  com- 
mitted, and  the  impression  which  long  prevailed  to 
the  contrary  seems  to  be  erroneous."  (/) 

(/[•)   I  Smith,  L.  C,  6th  ed.,  656. 

(/)  The  II alley,  L.  R.,  2  P.  C.  203  ;  per  Curiam. 


courts  the  same  as  if  he  were  a 
citizen.  Taylor  v.  Carpenter,  3 
Story,  458 ;  Coffeen  v.  Brunton,  4 
McLean,  516  ;  and  he  does  not  lose 
such  right  by  residence  in  one  of 
the  stales.  Breedlove  v.  Tricolet, 
7  Pet.  413. 

An  alien  has  no  rights  of  imino- 
vable  property  except  such  as  are 
given  by  each  state.  Hauenstein 
V.  Lynham,  100  U.  S.  483 ;  Scott  v. 
Sandford,  ig  How.  399;  Heirn  v. 
Bridault,  37  Miss.  221  ;  Atkins  v. 
Kron,  5  Ired.  Eq.  207  ;  Stillman  v. 
Dunklin,  48  Ala.  175.  He  may  sue 
for  the  rights  guaranteed  to  him  by 
treaty,  and  may  maintain  an  action 
for  the  recovery  of  property  he  is 
merely  permitted  to  hold.  Den  v. 
Brown,  7  N.  J.  L.  333  ;  De  Laveaga 
V.Williams,  5  Sawyer,  574;  Rouche 
v.  Williamson,  3  Ired,  145.  But  an 
alien  widow  cannot  recover  dower 
in  lands  which  her  husband,  also 
an  alien,  held  under  a  statute. 
Connolly  v.  Smith,  21  Wend.  59.  A 
plea  of  alienage,  if  imposed  to  a 
real  action,  goes  in  general  to  de- 
feat the  right  of  action  altogether. 
White  V.  Sabarrego,  23  Tex.  243. 
The  plea  of  alienage  ought  to  di- 
rectly aver  that  the  person  is  an 
alien  and  that  he  was  born  within 


the  allegiance  of  a  foreign  state 
and  out  of  the  allegiance  of  this 
state.  Coxe  v.  Gulick,  10  N.  J.  L. 
329  ;  and  that  such  was  his  charac- 
ter and  status  when  the  suit  was 
brought  Elgce  v.  Lovell,  i  Woolw. 
C.  C.  1 10  The  alienage  of  a  plaintiff 
is  a  cause  in  abatement,  except  that 
in  a  real  action  alien  enemy  may 
be  pleaded  either  in  bar  or  in 
abatement.  Leonie  v.  Taylor,  12 
Mass.  8  ;  Hutchinson  v.  Brock,  li 
Id.  119.  An  alien,  if  not  an  alien 
enemy,  may  sue  in  foreclosure  of  a 
mortgage,  the  debt  being  consid- 
ered the  principal  and  the  land  the 
incident.  Hughes  v.  Edwards,  9 
Wheat.  489. 

An  alien  residing  within  the 
limits  of  a  state  is  entitled  to  the 
benefit  of  its  insolvent  laws.  Judd 
v.  Lawrence,  i  Cush.  534. 

An  alien  found  within  the  state 
is  liable  to  be  sued  in  its  courts  on 
all  his  contracts,  wherever  made. 
Barrel  v.  Benjamin,  15  Mass.  354. 
And  he  may  by  complying  with 
the  laws  of  congress  remove  the 
suit  to  the  federal  courts,  but  is  not 
entitled  to  a  dismissal  of  the  suit  on 
the  ground  that  it  was  improperly 
brought  in  the  state  court,  Welve 
v.  Duroc,  15  La.  Ann.  66. 


GENERAL      RULES. 


69 


Foreigners  can  be  sued  and  (it  is  presumed)  sue  in  this 
country  for  Avrongs  committed  on  the  high  seas.  (;//) 

The  statement  that  an  action  always  lies  in  our  courts 
for  transitory  matters,  whatever  the  place  in  which  the 
grievance  was  committed,  must  be  taken,  as  regards  both 
actions  ex  contractu  and  actions  ex  delicto,  subject  to 
certain  limitations. 

A  person  may  bring  an  action  on  a  contract  made 
abroad,  but  the  courts  here  in  judging  of  the  validity  ot 
the  contract  will  follow  the  law  with  reference  to  which 
the  parties  may  be  presumed  to  have  contracted ;  i.  e.  (in 
almost  all  cases),  the  law  of  the  country  in  which  the  con 


(w)  Submarine  Telegraph  Co.  v.  Dickson,  33  L.  J.  139,  C.  P.  ;  15  C.  B.,  N 
S.  729- 

In  Taylor  v.  Carpenter,  2  Woodb.  courts  at  home  for  us  to  resort  to. 
&  M.  I,  Judge  Woodbury,  in  a  case  *  *  *  *  *  *  * 
for  the  infringement  of  a  foreign-  "An  alien  is  not  now  regarded 
er's  trade-mark  by  a  citizen,  very  as  the  outside  barbarian  ;  he  is  con- 
pointedly  expresses  an  aHen's  sidered  in  China,  and  the  struggle 
powers  to  sue  in  our  courts.  He  in  all  commercial  countries,  for 
says :  "  The  exceptions  to  this  some  centuries,  has  been  to  cn- 
position,  as  to  the  rights  of  for-  large  his  privileges  and  powers  as 
eigners,  I  take  to  be  two-fold,  if  no  to  all  matters  of  property  and 
more.  One  is  that  it  is  not  recipro-  trade.  *  *  *  por  many  years 
cal,  no  such  right  being  granted  to  it  has  been  held  that  pleas  of 
exist,  and  which  may  be  prosecuted  alienage  are  to  be  discouraged,  and 
by  our  citizens  in  Great  Britain,  are  a  defence  not  favored  in  the 
where  this  plaintiff  resides.  But  law.  *  *  *  Our  duties  are  such 
this  might  be  a  good  reason  for  to  redress  wrongs  to  foreigners  that 
legislation  by  congress  not  allowing  they  are,  by  the  constitution,  al- 
aliens  to  have  any  rights  or  to  lowed  to  sue  in  the  United  States 
prosecute  them  in  this  court  unless  courts,  so  as  to  secure  greaier  ex- 
they  are  reciprocal  and  allowed  to  emption  from  local  partialities  or 
our  people  in  their  respective  prejudices  against  them,  and  a  re- 
countries,  fusal  of  justice  to  them  in  judicial 

"  But  no  such  discrimination  has  tribunals  is  one  just  cause  of  war. 

ever  been  made  by  congress,  and  4  Elliott  Deb.  i67. 

no  court  could   make  it  by  mere  "  The    eleventh    section   of   the 

construction  without  an  exercise  of  Judiciary    act    confers    the    same 

judicial   legislation.     The  cannibal  power  on  this  court  to  sustain  suits 

of  the  Fejces  may  sue  here  in   a  where  an  alien  is  a  party,  as  where 

personal  action,  though  having  no  a  citizen  is."      *      *      * 


70  PARTI/:S     TO     ACTIOXS. 

tract  was  inadc.  On  the  other  hand,  (luestions  (.1  ])r{)ce- 
dure  are  governed  by  the  hiw  of  the  country  in  which  the 
action  is  broui^ht.  Hence,  the  general  rule  is,  that  in  in- 
terpreting a  contract  made  abroad,  the  courts  Avill  follow 
what  is  called  the  lex  loci,  /.  c,  the  law  of  the  place  in 
which  the  contract  was  made,  {n)  But,  on  the  other  hand, 
as  to  questions  of  procedure,  they  are  governed  by  the 
lex  fori,  i.  e.,  the  law  of  the  country  in  which  the  action 
is  brought.  "  The  distinction  that  is  laid  down  in  all  cases 
of  this  description  is  between  the  cause  of  action  which  is 
to  be  judged  of  with  reference  to  the  law  of  the  country 
where  it  originated,  and  the  mode  of  procedure  which 
must  be  adopted  as  it  happens  to  exist  in  the  country 
where  the  action  is  brought."  {o)  "  The  rule  which  applies 
to  the  case  of  contracts  made  in  one  country,  and  put  in 
suit  in  the  courts  of  law  of  another  country,  appears  to  be 
this,  that  the  interpretation  of  the  contract  must  be  gov- 
erned by  the  law  of  the  country  where  the  contract  was 
made.  The  mode  of  suing,  and  the  time  within 
[57]  which  the  action  must  be  brought,  must  be  gov- 
erned by  the  law  of  the  country  where  the  action  is 
brought."  (/)' 

For  example,  a  contract  made  in  France,  (q)  or  in 
Scotland,  (r)  is  held  valid  here  if  valid  in  France  or 
Scotland ;  and  invalid  here  if  invalid  in  France  or  Scot- 
land. On  the  other  hand,  if  barred  here  by  the  Statute 
of  Limitations,  it  can  not  be  sued  upon  in  our  courts, 
even  though  in  France  or  in  Scotland  it  would  not  be 
barred  by  any  Statute  of  Limitations,  {s) 

(k)  Lloyd  V.  Guibert,  35  L.  J.  74,  Q.  B.  ;  L.  R.,  i  Q.  B.  115  (Ex.  Ch.). 

(0)  I  Smith,  L.  C,  6th  ed.,  657. 

(/)  Trimbey  v.  Vignier,  i  Bing.  (N.  C.)  159,  judgment  of  Ti.ndal,  C.  J. 

(g)  Ibid. 

(r)  Briti-,h  Linen  Co.  v.  Drummond,  lo  B.  &  C.  903. 

(j)  Ibid.  ;  De  la  Vega  v.  Vianna,  i  B.  &  Ad.  284. 

I.    Robinson     v.     Campbell,     3  4  Conn.  47.  Even  where  the  action 

Wheat.  212;  Hinkley  v.  Mareau,  3  is  removed  while  the  rights  of  the 

Mason,   88;   Smith   v.  SpinoUa,   2  parties  are  governed  by  the  local 

Johns.  198;  Atwater  v.  Townsend,  law,  the  form  is  controlled  by  the 


GENERA  L     RULES.  71 

It  is  doubtful  whether,  if  an  Englishman  contracts  with 
a  foreigner  abroad  to  do  an  act  not  contrary  to  the  law 
of  a  foreign  country,  but  contrary  to  the  law  of  England, 
the  foreigner  may  maintain  an  action  in  England.  (/)  It 
appears,  however,  clear  that  "  as  to  foreign  law,  which 
we  respect,  there  has  always  been  an  exception  of  foreign 
laws  in  conflict  with  our  own  laws  on  subjects  of  religion 
and  morality."  {ii) 

A  person  may  sue  here  for  a  tort  committed  abroad, 
provided  that  the  act  complained  of  is  a  tort  (or  at  least 
unlawful),  at  the  place  where  it  was  done,  and  is  also  a 
tort  according  to  English  law.  But  no  one  can  bring  an 
action  for  tort  in  our  courts  for  any  act  which  is  not  both 
unlawful  at  the  place  where  it  was  done,  (;i-)  and  also  a 
tort  here,  iz) 

It  is  settled,  that  an  action  lies  in  England  for  a  tort 
committed  abroad  ;  e.  g.,  for  an  assault  at  Naples,  {a) 

That   an   action  does  not  lie  for  an  act  which, 
though   wrongful   here,    is    lawful  in  the    country      [58] 
where  it  is  done,  is  established  by  the  judgment  of 


(/)  Santos  V.  Illidge.  6  C.  B.,  N.  S.,  841  ;  26  L.  J.  3,  Q.  B. ;  8   C.  B.,  N.  S 
861  ;  ^()  L.  J.  349,  Q.  B.  (Ex.  Ch.). 

(tt)  Emperor  of  .'\ustna  v.  Day,  30  L.  J.  707  (Ch.),  per  Cami'KELL,  Ch. 

(x)  Phillips  V.  Eyre,  L.  R.  4.  Q-  B.  225  ;  38  L.  J.  113.  Q-  B. 

(s)  The  Haliey,    L.  R.   2,  P.   C.    193  ;  37  L.  J.   33,  Ad.     Affirmed  in  Ex- 
chequer chamber.  Weekly  Notes,  1870,  177. 

(a)  Scott  V.  Seymour,  2  H.  &  C.  219  ;  31  L.  J.  457,  Ex. ;  2  II.  &  C.  231  ;  32 
L.  J.  61,  Ex.  (Ex.  Ch.) 

law  of  the  forum.  Alexandria  v.  27  Iowa,  251  ;  Watson  v.  Brewster, 
Swan,  5  How.  83.  So  as  to  the  i  Pa.  St.  381.  And  so,  too,  as  to 
effects  of  the  formal  parts  of  an  in-  the  formal  and  technical  rightful- 
strument,  e.  g.,  a  seal  or  scroll,  as  ness  of  the  process  the  law  of  the 
affecting  the  formal  action  to  be  court  must  decide.  Wilcox  v. 
brought.  Andrews  v.  Herriott,  4  Hunt,  13  Pet.  378  ;  Sturgess  v.  Van- 
Cow.  508;  United  States  v.  Donel-  dcrbilt,  73  N.  Y.  429;  Leach  v. 
ly,  8  Pet.  361;  Roy  v.  Beard,  8  Greene,  116  Mass.  534;  Thornton 
How.  451  ;  Douglass  v.  Oldham,  6  v.  Ins.  Co.,  83  111.  365  ;  Carson  v. 
N.  H.  150;  Trashcr  v.  Evcrhardt,  Hunter,  46  Mo.  467  ;  Laird  v.  Hod- 
3  Gill  Sc.  f.  234 ;  Williams  v.  Haynes,  gcs,  26  Ark.  356. 


72  PAKTJIiS     TO    ACTIONS. 

the  (Jueen's  Bench,  in  Phillips  v.  Eyre,  {U)  from  which  the 
Ibllowino-  quotation  is  taken  : 

"  It  may  be  useful  to  consider  what  would  have  been 
the  effect  if  .  .  .  .  the  lcgislatui"e  of  Jamaica,  in  an 
ticipation  of  future  events,  had  passed  a  statute  author 
iziui;-  the  acts  which  have  given  rise  to  this  action.  We 
can  not  doubt  that  in  such  a  case  no  right  of  action 
would  arise  here.  It  appears  to  us  clear  that  where  by 
the  law  of  another  country  an  act  complained  of  is  law- 
ful, such  act,  though  it  would  have  been  wrongful  by  our 
law  if  committed  here,  can  not  be  made  the  ground  of  an 
action  in  an  English  Court.  The  rule  which  obtains  in 
respect  of  property  and  civil  contracts,  namely,  that  an 
act,  unless  intended  to  take  effect  elsewhere  shall,  as  re- 
gards its  effect  and  incidents,  if  a  conflict  of  law  ai'iscs 
between  the  lex  loci  and  the  lex  fori,  be  governed  bv  the 
former,  appears  to  us  applicable  to  the  case  of  an  act 
occasioning  personal  injury.  To  hold  the  contrary,  would 
be  attended  with  the  most  inconvenient  and  startling  con 
sequences,  and  would  be  altogether  contrary  to  the 
comity  of  nations  in  matter  of  law,  to  which  effect  should, 
if  possible,  be  given.  An  act  might  not  only  be  lawful, 
but  might  even  be  enjoined  by  the  law  of  another  coun- 
try, Avhich  would  be  wrongful,  and  give  a  right  ot  action 
by  our  law,  and  it  certainly  would  be  in  the  highest  de- 
gree unjust,  that  an  individual  who  has  intended  to  obey 
the  law  binding  upon  him,  should  be  held  liable  in  dam 
ages  in  another  country  where  a  different  law  may  prevail. 
Thus,  an  arrest  and  imprisonment  might  be  perfectly 
justified  by  the  law  of  a  foreign  country  under  circum- 
stances in  which  it  would  not  be  justifiable  here.  It  would 
be  impossible  to  hold  that  in  such  a  case  an  action  could 
be  maintained  in  an  English  court. 

"  The  same  reasoning  will  apply  where  an  act, 

[59]     though  not  enjoined  is  yet  authorized  and  rendered 

lawful  by  the  law  of  the  country  where  it  is  done. 

There  will  have  been  no  intention  to  inflict  a  wrong  in 

{b)  L.  R.  4,  Q.  P..  22;  ;  38  L.  J.  113,  Q.  B. 


GENERAL    RULES. 


73 


f uch  a  case,  nor  according  to  the  law  of  a  particular  coun- 
try will  any  right  have  been  infringed."  {c) 

A  judgment  (^)  of  the  Privy  Council  decides  that  no 
action  lies  here  for  an  act,  which  though  a  wrong  in  the 
country  where  it  was  committed,  would  not  be  a  wrong 
if  done  in  England. 

"  The  liability  of  the  appellants,  and  the  right  of  the 
respondents  to  recover  damages  from  them  as  the  owners 
of  the  *  Halley,'  if  such  liability  or  right  exists  in  the 
present  case,  must  be  the  creature  of  the  Belgian  law,  and 
the  question  is,  whether  an  English  court  of  justice  is 
bound  to  apply  and  enforce  that  law  in  a  case  when, 
according  to  its  own  principles,  no  wrong  has  been  com- 
mitted by  the  defendants,  and  no  right  of  action  against 
them  exists.     .     .     . 

"  It  is  true  that  in  many  cases  the  courts  of  England 
inquire  into  and  act  upon  the  law  of  foreign  countries,  as 
in  the-case  of  a  contract  entered  into  in  a  foreign  country, 
where  by  express  reference,  or  by  necessary  implication, 
the  foreign  law  is  incorporated  with  the  contract ;  and 
proof  and  consideration  of  the  foreign  law,  therefore, 
becomes  necessary  to  the  construction  of  the  contract 
itself;  and  as  in  the  case  of  a  collision  on  an  ordinary 
road  in  a  foreign  country,  where  the  rule  of  the  road  in 
force  at  the  place  of  collision  may  be  a  necessar}-  ingre- 
dient in  the  determination  of  the  question  by  whose  fault 
or  negligence  the  alleged  tort  was  committed.  But  in 
these  and  similar  cases,  the  English  court  admits  the 
proof  of  the  foreign  law  as  part  of  the  circumstances 
attending  the  execution  of  the  contract,  or  as  one  of  the 
facts  upon  which  the  existence  of  the  tort,  or  the  right  to 
damages,  may  depend,  and  it  then  applies  and  enforces 
its  own  law  so  far  as  it  is  applicable  to  tlic  case  thus 
established  ;  but  it  is  in  their  lordships'  opinion,  [60] 
alike  contrary  to  principle  and  to  authority  to  hold 
that  an  English  court  of  justice  will  enforce  a  foreign 
rounicipal  law,  and  will  give  a    remedy  in   the  shape  of 

(f)  rhillips  V.  Eyr--.  I,.  K.  4,  Q.  n.  237,  per  Curiam. 
f,d)  The  Halley.  I,.  R.  2.  I".  C.  I<>3. 


74  PAKTZ/tS     TO    ACTIONS. 

damages  in  respect  of  an  act  which,  according  to  iia  own 
principles,  imposes  no  liability  on  the  person  from  whom 
the  damages  are  claimed."  (c) 

It  is  still  an  open  question  whether — "  where  an  act 
which,  though  not  authorized  by  the  lex  loci,  yet  gives 
no  right  of  action,  a§  where  that  act  is  punishable  by 
criminal  proceedings,  but  gives  no  right  to  damages,  but 
such  act  bv  the  law  of  this  country  would  give  a  right  to 
damages,  as  in  such  a  case  no  conflict  of  law  would  arise, 
— an  action  might "  [or  might  not],  "  be  maintained  in  an 
English  court."  (/) 

An  assault  committed  at  Naples,  (g)  where  it  was 
unlawful,  or  at  any  rate  not  shown  to  be  lawful,  has  been 
held  to  give  a  right  of  action  here.  An  assault  committed 
m  Jamaica  {/i)  under  circumstances  which  would  in  Eng- 
land give  a  cause  of  action,  but  authorized,  though 
subsequently  to  its  commission,  by  the  laws  of  Jamaica, 
has  been  held  to  give  no  cause  of  action  in  England  ;  and 
an  act  (/.  e.,  the  running  down  of  a  ship  in  Belgian  waters), 
which  gave  rise  to  a  right  of  action  in  Belgium,  has  been 
held  not  actionable  here,  because  the  facts  of  the  case 
would,  if  the  accident  had  occurred  in  England,  have 
exempted  the  defendants  from  liability.  (?) 

The  rule  then  that  transitory  actions  can  be  brought 
here  in  respect  of  causes  of  action  which  have  arisen 
abroad,  is  not  applied  in  the  same  manner  when  the  cause 
of  action  is  a  breach  of  contract,  as  when  it  is  a  tort. 
A  contract,  which  would  be  invalid  if  made  in 
[61]  England,  generally  speaking,  supports  an  action  if 
it  is  valid  at  the  place  where  it  is  made.  But  no 
action  can  be  brought  for  an  act,  which,  though  a  tort  at 
the  place  where  it  was  done,  is  not  considered  a  tort  by 
English  law. 


((f)  The  Halley.  L.  R.  2,  P.  C.  202,  203,  204,  judgment  of  Privy  Council. 
( /)  Phillips  V.  Eyre,  L.  R.  4,  Q.  B.  239,  240,  per  Curiam. 
( J?- )  Scott  V.  Seymour,  2  H.  &  C.  219  ;  31  L.  J.  457,  Ex.  ;  2  H.  &  C.  231  • 
32  L.  J.  61,  Ex.  (Ex.  Ch.) 

(A)  Phillips  V.  Eyre,  L.  R.  4,  Q.  B.  225  ;  38  L  J.  133,  Q.  B. 
(»■)  The  Halley,  L.  R.  2,  P.  C.  193  ;  37  L.  J.  33,  Ad. 


GENERAL    RULES.  75 

Exception  i. — Where  an  injurious  act  amounts  to  a  public 
nuisance. 

A  public  nuisance — e.  g.,  an  obstruction  to  a  highway, 
a  noxious  trade,  &c., — is  an  indictable  offense,  and  the 
proper  remedy  for  it  being  an  indictment,  no  action  will 
lie  for  such  a  public  nuisance  at*  the  suit  of  a  private 
person  unless  he  has  sustained  damage  by  it  over  and 
above  what  is  common  to  others,  {k) '  No  action,  there- 
fore, lies  for  merely  placing  an  obstruction  on  a  public 
highway,  but  a  person  damaged  by  driving  or  falling 
against  it  may  maintain  an  action  for  the  damage  done  to 
him.  (/) 

It  may  be  hard  to  determine  whether  the  plaintiff  has 
or  has  not  suffered  a  particular  damage  above  what  is 
common  to  the  public. 

A  person  who  in  consequence  of  an  obstruction  to  the 
highway  has  been  hindered  from  access  to  his  colliery, 
or  impeded  in  his  business,  (;«)  or  deprived  of  tenants,  {n) 

{/:)  3  Bl.  Com.  220;  Bullen,  Pleadings,  3rd  ed.,  377. 

(/)  Ashbyv.  White,  I  Smitti,  L.  C,  6th  ed.  250,  251,  judgment  of  HOLT,  C.J. 

(/w)  Iveson  v.  Moore,  I  Ld.  Raym.  4S6. 

(«)  Baker  v.  Moore,  Ibid.  Compare  for  this  and  the  preceding  note 
Ricket's  Ca.>e,  L.  R.  2,  H.  L.  187  ;  36  L.  J.  205,  Q.  B.  ;  Beckett  v.  Midland 
Rail.  Co.,  L.  R.  3,  C.  P.  97-100,  judgment  of  Willes,  J.,  and  Com.  Dig.,  Action 
on  the  Case,  A. 

I.  One  having  a  common  inter-  dictment.  Morris  and  Essex  R.  R. 
est  in  a  public  right  cannot  sue  in  Co.  v.  Pruden,  20  N.  J.  Eq.  536; 
his  own  name  and  for  his  indi-  Shed  v.  Hawthorne,  3  Neb.  184.  But 
vidua!  benefit.  Davis  v.  Mayor  of  if  a  private  person  suffers  some  ex- 
New  York,  14  N,  Y.  514;  Lansing  traordinary  damage  distinct  from 
v.  Smith,  8  Cow.  152;  Currier  v.  that  of  the  public  at  large,  he  has 
West  Side  E.  P.  R.  Co.,  6  Blatch.  his  action.  Irwin  v.  Dixion,  9  How. 
494;  Eraser  v.  Freelon,  53  Cal.  27;  Hinchman  v.  Paterson  H.  R. 
647;  Packard  v.  Board,  2  Col.  350.  Co.,  17  N.  J.  Eq  82;  Bigelow  v. 
And  if  the  parties  are  too  numerous  Hartford  Bridge  Co.,  14  Conn.  577  : 
or  the  interest  or  right  is  common  Thornton  v.  Smith,  10  R.  I.  477  ; 
to  many,  one  may  sue  or  defend  for  Pettis  v.  Johnson,  56  Ind.  149: 
the  benefit  of  all  Smith  v.  Sworm-  Hickok  v.  Hinc.  23  Ohio  St.  523; 
stedt,  16  How.  302  ;  Bacon  v.  Rob-  Blanc  v.  Klumpke,  29  Cal.  159; 
ertson,  18  lb.  489.  No  action  lies  Prince  v.  McCoy,  40  Iowa,  536. 
for  a  public  nuisance  except  by  in- 


76  PAR  TIES     rO    ACTIONS. 

or  hindered  from  carrying  tithes,  {o)  has  been  considered 
to  be  injured.  But  where  an  obstruction  to  a  highway 
has  merely  delayed  one  person  in  common  with  others, 
(/')orhas  delayed  him  more  frequently  than  others, 
[62]  {q)  or  has  damaged  his  trade,  (r)  he  has  been  held 
to  have  suffered  no  special  damage. 

It  is  necessary,  however,  to  distinguish  from  public 
nuisances  acts  which  do  not  amount  to  a  public  nuisance, 
out  infringe  upon  the  rights  of  a  class  of  persons.  For 
such  acts  each  person  of  the  class  whose  rights  are  in- 
vaded may  have  an  action,  and  if  the  act  complained  of 
would,  by  its  repetition  or  continuance,  furnish  evidence 
in  derogation  of  the  plaintiff's  legal  rights,  he  may  sue 
without  showing  any  actual  personal  damage  to  himself 
whatever,  {s) 

When,  therefore,  a  person,  by  wrongfully  depasturing 
cattle  on  a  common,  infringes  upon  the  rights  of  all  the 
commoners,  each  commoner  may  sue  him  without  prov- 
ing any  specific  damage  to  himself,  because  "  the  law  con- 
siders the  right  of  the  commoner  is  injured  by  such  an 
act,  and,  therefore,  allows  him  to  bring  an  action  for  it  to 
prevent  a  wrong-doer  from  gaining  a  right  by  repeated 
acts  of  encroachment.  For  whenever  any  act  injures 
another's  right,  and  would  be  evidence  in  future  in  favor 
of  the  wrong-doer,  an  action  may  be  maintained  for  an 
invasion  of  the  right  without  proof  of  any  specific  injury." 
(/)  And  so  where  the  plaintiffs,  in  common  with  other 
inhabitants  of  a  particular  district,  enjoyed  a  customary 
right  at  all  times  to  have  water  from  a  spout  in  a  highway 
in  the  district,  for  domestic  purposes,  and  the  defendant, 
a  riparian  proprietor  on  the  stream  which    supplied  the 


{0)  Hart  V.  Bassett,  4  Viner,  517. 

{p)  Winterbottom  v.  Ld.  Derby,  L.  R.  2,  Ex.  316;  36  L  J.  194,  Ex  ; 
Greasley  v.  Codlin,  2  Bing.  263. 

{q)  Caledonian  Rail.  Co.  v.  Ogilvy,  2  Macq.  22g. 

(r)  Ricket's  Case,  L.  R.  2,  H.  L.  175  ;  36  L.  J.  205,  Q.  B. 

{s)  Harrop  v.  Hirst,  L.  R.  4,  Ex.  43  ;  38  L.  J.  r,  Ex. ;  Mellorv.  .Ipateman, 
I  Wms.  Saund,  346(Z. 

(/)  Mellor  V.  Spateman,  I  Wms.  Saund.  l^da  ;  Harrop  v.  Hirst,  L.  R.  4,  Ex 
46  ;  judgment  of  Kelly,  C.  B. 


GENERAL      RULES.  jj 

spout  with  water,  on  various  occasions  prevented  such 
large  quantities  of  water  irom  reaching  the  spout,  as  to 
render  what  remained  insufficient  for  the  needs  of  the 
inhabitants,  it  was  held  that  the  plaintiffs,  who  themselves 
had  suffered  no  personal  damage  or  mconvenience, 
might  maintain  an  action  against  the  wrong-doer,  {u)  \6'^'] 
"  Where  man}-  men  are  offended  by  one  particular 
act,  there  they  must  proceed  by  way  of  indictment,  and 
not  of  action  ;  for  in  that  case  the  law  will  not  multiply 
actions.  But  it  is  otherwise  where  one  man  only  is  of- 
fended by  that  act,  he  shall  have  his  action  ;  as  if  a  man 
dig  a  pit  in  a  common,  every  commoner  shall  have  an 
action  on  the  case,  ....  for  every  commoner  has  a 
several  right.  But  it  would  be  otherwise  if  a  man  dig  a 
pit  in  a  highway.  Every  man  shall  not  bring  his  action, 
but  the  party  shall  be  punished  by  indictment,  because 
the  injury  is  general  and  common  to  all  that  pass."  [x) 

"  It  is  conceded  that  where  an  indictment  may  be 
maintained,  there  is  no  remedy  by  action  without  proof 
of  individual  damage.  But  the  same  principle  does  not 
apply  where  the  injury  complained  of  is  not  one  affecting 
the  public  generally,  but  only  a  particular  class  or  section 
of  persons.  It  is  also  conceded  that  the  infringement  of 
a  right  furnishes  a  cause  of  action,  but  it  is  said  there 
must  be  damage  of  some  sort  proved  particular  to  the 
person  who  sues.  Now  here  the  jury  have  found  that 
the  inhabitants  of  the  district  in  question,  and  the  plain- 
tiffs among  them,  have  a  right ;  and  also  that  the  defen- 
dant has  at  times  interfered  with  that  right,  but  they  have 
also  found  that  the  plaintiffs  have  personally  suffered  no 
loss  either  pecuniarily  or  by  waste  of  time  in  going  to 
fetch  water  in  vam  or  otherwise.  Neitner  in  time  nor 
money  have  they  incurred  any  appreciable  inconvenience. 
It  is,  however,  admitted  that  any  inhabitant  who  had 
actually  been  injured  by  the  circumstance  that  tiic  supplv 
of  water  had  been  lessened  might  have  maintained  an 
action.     But  it  appears  to  me  that  the  mere  fact  of  ab- 

(m)   Ilarrop  v.  Hirst,  I,.  R.  4,  Kx.  43  ;  3?  L.  J.  i,  Ex. 

(x)  Ashhy  V.  While,  2  Smith,  \..  C,  6lh  ed.,  239,  per  Hoi  T,  C.  J. 


78  PARTIES     TO    ACTIONS. 

stractinc;  from  time  to  time  tlie  supply  of  water  to  which 
the  inhabitants  of  the  district  were  justly  entitled  mii;ht 
furnish  some  evidence  in  derogation  of  the  rights 
[64]  of  those  inhabitants,  whether  on  this  or  that  partic- 
ular occasion  they  sulfered  actual  damage  or  not, 
On  that  ground  ....  the  plaintiffs  are  entitled  to 
recover  in  this  action, — on  the  ground,  that  is  to  say,  that 
the  act  of  the  defendant  was  one  which  derogated,  or 
might  hereafter  derogate,  from  their  legal  right."  {y) 

Exception  2. — Where  tlie  wrong  done  amounts  to  a  felony. 

A  person  who  is  wronged  by  another  can  not,  if  the 
wrong  amounts  to  a  felony,  bring  an  action  against  the 
wrong-doer  until  he  has  prosecuted  him  for  the  felony,  {z) 

If  X.  take  goods  from  A.  under  circumstances  which 
make  the  act  amount  to  larceny;  or  if  X.  make  an  assault 
upon  A.  which  amounts  to  a  rape,  A.  can  not  sue  X.  in 
an  action  of  trover,  or  for  assault,  until  A.  has  prosecuted 
X.  for  the  felony  ;  and  if  it  appear  at  the  trial  that  the  act 
for  which  the  action  is  brought  is  a  felony,  the  judge  will 
nonsuit  the  plaintiff,  {a) 

This  rule  does  not  prevent  actions  against  others  than 
the  felon  himself.  Thus  if  X.  steals  goods  from  A.  and 
sells  them  (not  in  market  overt)  to  Y.,  who  buys  them 
without  knowing  they  are  stolen,  A.  may  bring  an  action 
of  trover  against  Y.  although  he  has  not  prosecuted 
X.  ib) 

"  There  is  [a]  rule  of  the  law  of  England,  viz.,  that  a 
man  shall  not  be  allowed  to  make  a  felony  the  foundation 
of  a  civil  action;  not  that  he  shall  not  maintain  a  civil 
action  to  recover  from  the  third  and  innocent  person  that 
which  has  been  feloniously  taken  from  him — for  this  he 
may  do  if  there  has  not  been  a  sale  in  market  overt — but 
that  he  shall  not  sue  the  felon  ;  and  it  may  be  admitted 

(j)   Harrop  v,  Hirst   L.  K.  4,  Ex.  47,  48,  jurlgment  of  Channel,  B. 
(2)  Ashby  V.  White,  i   Smith,  L.  C,  6th  eel.,  267  ;  Wellock  v.  Constantine. 
«  H.  &  C.  146:  32  L.  J.  285.  Ex. 

(a)  Wellock  v.  Constantine,  2  H.  &  C.  146  ;  32  E.  J.  285,  Ex. 

(b)  White  V.  Speltigue,  13  M.  &  W.  603. 


GENERAL      RULES.  >9 

that  he  shall  not  sue  others  together  with  the  felon  in  a 
proceeding  to  which  the  felon  is  a  necessary  part/,  and 
wherein  his  c.aim  appears  by  his  own  showing  to 
be  founded  on  the  felony  of  the  defendant,  ic)     This      [65] 
is  the  whole  extent  of  the  rule."  {d) 

It  is  said  that  a  master  whose  servant  is  killed  can  not 
sue  until  the  possible  felony  is  inquired  into,  {e) 

The  statute  9  &  10  Vict.  c.  93,  for  compensating  the 
families  of  persons  killed  by  accidents,  expressly  enacts 
that  the  general  rule  shall  not  apply  to  actions  brought 
under  the  statute. 


Rule  5. — The  same  person  can  not  be  both  plaintifi 
and  defendant.^ 

"  It  is  clear  upon  the  acknowledged  principles  of  plead- 
ing in  the  Common  Law,  that  a  party  can  not  at  once  be 
a  plaintiff  and  a  defendant  in  the  same  action  ;  or,  in 
other  words,  sue  himself  either  alone  or  in  conjunction 
with  others."  (/) 

The  rule  that  a  person  can  not  sue  himself  scarcely 
requires  explanation,  and  results  immediately  from  the 
fact  that  it  is  impossible  for  a  man  himself  to  infringe 
upon  his  own  rights,  or  do  himself  an  injury  in  the  legal 
sense  of  the  term.  But  as  a  rule  of  law  it  has  the  further 
application  that  where  two  or  more  persons  must  join  as 
plaintiffs  in   an  action,  they  can  not  bring  any  action  in 

(f)  Gibson  v.  Minet,  i  II.  151.  612. 

(</)  Stone  V.  Marsh,  6  B.  &  C.  564,  judgment  of  Lord  Tenterden,  C.  J.  ; 
IVhite  V.  Spettii,Hie,  13  M.  &  W.  603  ;  Lee  v.  Bayes,  i8  C.  B.  602. 
(<f)  Com.  Dig.,  Action  on  the  Case,  B.  5. 
(/)  Story,  Partnership,  s.  221  ;  Jones  v.  Yates,  9  B.  &  C.  532. 

I.  Pearson  v,  Nesbit,  i  Dev.  316;  statutory  action  of  partition.    Blais- 

Denny  v.  Metcalf.  28  Me.  89 ;  I51ais-  dell  v.  Pray,  68  Me.  270  ;  Scnter  v. 

dell  V.  Ladd,  14  N.  H.  130;  Pierce  De  Bcrnal,  38  Cal.  642.     Nor  does 

V.    lioston    Kive   Cent   Sav.   Bank,  the  rule  apply  in  cc|uity.  Batchelder 

125  Mass.  535.     The  rule  only  ap-  v.  Wendell,  36  N.  H.  21  5  ;  McDow- 

plies  to  natural  persons.  Connell  v.  ell  v.  Jacobs,  10  Cal,  387. 
Woodard,  5  Hijw.  67B  ;  but  not  to  a 


8o 


PARTfl'lS     TO    ACTIONS. 


which  it  would  be  necessary  to  make  one  of  them  de 
tcndants. 

A  pica  to  an  actit)n  by  A.  and  B.  against  X.  that  B.  is 
liable  with  X.  on  the  contract  sued  upon,  is  an  answer  to 
:he  action.  So  where  an  individual  is  a  common  partner 
in  two  houses  of  trade,  no  action  can  be  maintained  by 
the  one  house  against  the  other  upon  any  transactions 
which  take  place  between  them  whilst  such  indi- 
[66]  vidual  is  a  common  partner,  and  that,  whether  the 
action  be  Drought  during  his  lifetime  or  after  his 
death,  {h) 


Rule  6. — The  right  to  bring  an  action  can  not  be 
transferred  or  assigned.^ 

This  rule  is  involved  in  the  maxim,  "  a  chose  in  action 
is  not  assignable." 

{k)  Cabell  V.  Vaughan,  i  Wms.  Saund.  291,  n.  (/) ;  compare  Lindley,  Part- 
nership, 2nd  ed.,  48S.     See  Rule  22. 


I.  For  the  protection  of  the  rijjhts 
of  the  assignee  the  law  recognizes 
the  assignment  of  choses  in  action 
and  permits  the  assignee  to  bring 
suit  in  the  name  of  the  assignor. 
Hargraves  V.  Lewis,6  Ga.  211.  And 
the  nominal  plaintiff  can  interfere 
only  to  require  indemnity  against 
costs.  Southwick  v.  Hopkins,  47 
Me.  366.  But  the  real  owner  of  per- 
sonal property  in  the  adverse  pos- 
session of  another,  who  claims  to 
own  it,  cannot  sell  it,  having  only  a 
right  of  action  for  its  possession, 
which  cannot  be  legally  transferred. 
McGoon  V.  Aukeny,  11  111.  558; 
Gilbert  v.  Holmes,  65  111.  555  ;  Hall 
V.  Robinson,  2  N.  Y.  255  ;  Roger 
Williams  Ins.  Co.  v.  Carrington,  43 
Mich.  253  ;  Price  v.  Talley,  18  Ala. 


25.  A  chose  in  action  not  assign- 
able at  common  law  can  only  be 
sued  in  the  name  of  the  assignor 
for  the  use  of  the  assignee.  Park 
V.  Toledo.  C.  S.  &  D.  Ry.,  41 
Mich.  355;  Varney  v.  Bartlett,  5 
Wis.  278  ;  Labaume  v.  Sweeney,  17 
Mo.  154;  Skinner  v.  Lomes,  14 
Mass  107  ;  Chapin  v.  Vt.  &  Mass. 
Ry.  Co.,  8  Gray,  576;  Guthrie  v. 
White,  I  Dall.  268;  McKinney  v. 
Alvis,  14  111.  34;  Mt.  Olivet  Cem. 
Co.  V,  Stubert,  2  Head  120;  Mims 
V.  Swartz,  37  Tex.  14 ;  Heifer  v. 
Alden,  2  Minn.  335;  Elkinton  v. 
Fennimore,  13  Pa.  St.  173. 

The  assignor  will  not  be  allowed 
to  interfere  with  or  control  the  in- 
terests of  the  assignee  in  the  action. 
Belton  V.  Gibbon,  17  N.  J.  L.  y-j  ; 


GENERA  L      R  ULES. 


8i 


Property  in  chattels  personal  is  either  in  possession  or 
else  in  action. 

Property  in  possession  is  where  a  man  has  the  en- 
joyment, either  actual  or  constructive,  of  the  thing-  or 
chattel,  (z) 

"  Property  in  action  is  where  a  man  has  not  the  enjoy- 
ment, either  actual  or  constructive,  of  the  thing  in  ques- 
tion, but  merely  a  right  to  recover  it  by  suit  or  action  at 
law,  from  whence  the  thing  so  recoverable  is  called  a 
thing  (or  chose)  in  action.  Thus  money  due  on  a  bond  is 
a  chose  in  action,  for  a  right  to  claim  money  vests  when- 
ever it  becomes  payable,  but  there  is  no  possession  until 
recovered  by  course  of  law,  unless  payment  be  first  vol- 
untarily made.     And  so,  if  a  man  promises  and  covenants 


(i)  2  Steph.,  Com.,  6th  ed.,  lo. 


Gordon  v.  Drury,  20  N.  H.  353  ; 
Creighton  v.  Hyde  Park,  6  Bradw. 
274;  Lunt  V.  Stevens.  24  Me.  535  ; 
Deaver  v.  Eller,  7  Ired.  Eq.  24  ;  but 
the  assignor  may  be  indemnified 
against  costs.  Smith  v.  Wooding, 
20  Ala.  328 ;  Gordon  v.  Drury,  20 
N.  H.  354.  The  debtor  cannot  do 
any  act  to  prejudice  the  rights  of 
the  assignee  after  notice  of  the  as- 
signment. Creighton  v.  Hyde  Park, 
6  Bradw.  274;  Lunt  v.  Stevens,  24 
Me.  535  ;  St.  John  v.  Charles,  105 
Mass.  262  ;  Howell  v.  Medlcr,  41 
Mich.  642.  But  if  the  debtor  ex- 
pressly promise,  after  the  assign- 
ment, to  become  liable  to  the  as- 
signee, the  latter  may  sue  in  his 
own  name.  Simonds  v.  Pierce,  51 
Vt.  469 ;  Vose  v.  Treat,  58  Me.  383  ; 
P'olsom  V.  Belknap  County  Ins.  Co., 
30  N.  H.  240;  Burrows  v.  Glover, 
106  Mass.  325;  Chauvin  v.  La- 
barge,  I  Mo.  397.  And  both  as- 
signor and  assignee  cannot  sue  at 
6 


the  same  time ;  if  the  latter  has  an 
undoubted  right  to  sue,  the  former 
cannot.  Peck  v.  Dodds,  18  Nev. 
204;  Castner  v.  Sumner,  2  Minn. 
47;   Johnson   v.    Irby,   8    Humph. 

654. 

Part  of  a  demand  cannot  be  as- 
signed at  law  so  as  to  be  enforced 
against  the  debtor  without  his  con- 
sent. Creighton  v.  Hyde  Park,  6 
Bradw.  275  ;  Mandeville  v.  Welch, 
5  Wheat.  232 ;  Shankland  v. 
Washington,  5  Pet.  592 ;  Lawery 
V.  Steward,  25  N.  Y.  341  ;  Herriter 
v.  Porter,  23  Cal.  386;  Palmer  v. 
Merrill,  6  Cush.  285;  Ingraham  v. 
Hall,  1 1  Serg,  &  R.  82  ;  Orlrichs  v. 
Artz,  21  Md.  530;  Knight  v.  W.  & 
M.  Ry.  Co.,  I  Jones  358;  Martin  v. 
Hayes,  i  Busb.  424 ;  otherwise,  in 
equity,  if  all  parties  in  interest  be 
joined.  Grain  v.  Aldrich,  38  Cal. 
518;  Randon  v.  Barton,  4  Tex. 
292. 


82  PARTIES     TO    ACTIONS. 

with  me  to  do  any  act,  and  fails  in  it,  whereby  I  sufff  r 
damage,  the  recompense  for  this  damage  is  a  chose  in 
action.  For  though  a  right  to  some  recompense  vests  in 
me  at  tlie  time  of  damage  done,  yet  how  large  such 
recompense  shall  be  can  only  be  ascertained  by  verdict, 
and  the  possession  can  only  be  given  me  by  legal  judg- 
ment  and  execution.  A  chose  in  action,  then,  is  a  thing 
rather  in  potentia  than  in  esse,  though  the  owner  may 
have  as  absolute  a  property  in,  and  be  as  well  entitled  to, 
such  things  in  action  as  to  things  in  possession."  (/') 
\_^7'\  A  chose  in  action  has  also  been  defined,  {vt)  as  any 
"  personal  right,  not  reduced  into  possession,  but  re- 
coverable b}'  law."  Hence,  "  money  due  on  a  bond,  note, 
or  other  contract,  damages  due  for  breach  of  contract,  for 
detention  or  for  torts,  are  included  under  the  general 
head  or  title  of  things  in  action.  (;/)  A  chose  in  action 
has  been  again  described  as  a  "  right  to  be  asserted,  or 
property  reducible  into  possession,  either  by  action  at 
law  or  suit  in  equity,"  {o)  and  this  definition  has  been 
approved  of  in  a  recent  case,  {p)  The  expression,  there- 
fore, chose  in  action,  is  used  rather  indefinitely,  some- 
times for  the  thing  to  be  recovered  by  action, — e.  g., 
damages  for  a  breach  of  contract  or  tort, — and  some- 
times for  the  right  to  recover  such  damages.  For  the 
purpose  of  the  present  rule,  it  may  perhaps  be  best  de- 
fined as  a  claim  to  be  asserted  by  an  action  at  law. 

The  rule,  therefore,  that  a  chose  in  action  can  not  be 
assigned,  means  in  effect  that  no  one  can  transfer  to 
another  the  right  to  bring  an  action  for  such  a  claim  in 
the  name  of  the  transferee  or  assignee.  This  holds  good 
whether  the  right  to  bring  an  action  be  only  what  may 
be  called  a  possible  right  of  action,  such  as  A.  has  against 
X.,  the   moment   a  contract    is   entered  into    by  X.  with 

{k)  2  Steph.,  Com.,  6th  ed.,  11-12. 

{mi  2  Kent,  Com.,  s.  351.  See  Leake,  Contracts,  6,  and  Broom,  Com.,  2nd 
ed.,  42S,  429. 

(«)  2  Kent,  Com.,  s.  351. 

(0)  I  Williams,  Executors,  6th  ed.,  738. 

(/)  Fleet  V.  Perrins,  L.  R.  4,  Q.  B.  500,  505  (Ex.  Ch.).  See  L.  R.  3,  Q.  B 
•  36.     In  this  case  the  nature  of  a  cliose  in  action  is  elal)oratelv  discus<',ed, 


GENERAL     RULES.  83 

him  ;  or  an  actual  right  of  action,  such  as  A.  has  against 
X.,  when  X.  has  broken  a  contract  with  A.,  or  has  done  a 
wrong  to  A. 

Hence,  the  rule  may  thus  be  stated  :  A.  can  not  trans- 
fer or  assign  to  B.  the  right  to  sue  X.,  so  as  to  enable  B. 
to  sue  X.,  in  B's  name,  either  on  a  contract  made  with  A., 
or  for  a  tort  done  to  A. 

A.  purchased  of  X,  a  Derby  lottery  ticket,  on  the 
understanding  that  the  holder  of  a  ticket  bearing  [68] 
the  name  of  a  winning  horse  should  receive  a  prize 
in  money.  X.  received  5s.  for  each  ticket,  and  was  to  pay 
the  prize.  A.  sold  the  ticket  to  B.,  and  the  horse  named 
on  it  won.  It  was  held,  that  B.  could  not  sue  X.,  for  that 
though  there  may  have  been  a  valid  assignment  of  A.'s 
interest,  the  rule  against  the  assignment  of  a  chose  in  action 
prevented  the  party  interested  in  the  ticket  from  suing,  {q) 

The  assignee  of  an  administration  bond  under  22  &  23 
Car.  II.  c.  10,  which  was  assigned  to  him  by  order  of  the 
judge  of  the  Court  of  Probate,  under  20  &  21  Vict.  c.  yj, 
was  held  unable  to  sue  upon  it ;  if)  and  an  interest  in  a 
partnership,  being  a  chose  in  action,  can  not  be  assigned 
in  law,  so  as  to  enable  the  assignee  to  sue  as  a  partner,  {s) 

The  rule  that  a  chose  in  action  can  not  be  assigned,  is 
less  important  than  it  might  at  first  sight  appear, 
because,  though  "  by  the  strict  rule  of  the  ancient 
common  law,  no  chose  in  action  could  be  assigned  or 
granted  over,  .  .  .  this  nicety  is  not  now  so  regarded, 
as  to  render  [an  assignment]  really  ineffectual.  It  is,  on 
the  contrary,  in  substance,  a  valid  and  constant  practice, 
althr)ugh,  in  accordance  with  the  ancient  principle,  the 
form  of  assigning  a  chose  in  action  is  in  the  nature  of  a 
declaration  of  trust,  and  an  agreement  to  permit  the  as- 
signee to  make  use  of  the  name  of  the  assignor,  in  order 
to  recover  the  possession.  And,  therefore,  where  in 
common  acceptation   a  debt  or   bond  is  said  to  be    as- 

{q)  Tones  v.  Carter.  8  Q.  H.  134  ;  15  L.  J,  9^',  Q-  V,. 

(r)  Vt)ui)g  V.  Iluijhes,  26  I-.  J.  i6i,  Kx.  ;  4  II.  &  N.  76.     See  now,  21   &  23 
Vict.  c.  95,  s.  15. 

(s)  Tenipesl  v.  Kilner,  15  I,.  J.  10,  C.  I'.  ;  2  (^.  1!.  300. 


84  PARTIES     TO    ACTIONS. 

signed  over,  it  must  still  be  sued  in  the  original  creditor's 
name,  for  the  bringing  of  which  suit  the  person  to 
whom  it  is  transferred  has  sufficient  authority.  But  the 
king  is  an  exception  to  this  general  rule,  for  he  might 
always  either  grant  or  receive  a  chose  in  action  by 
assignment ;  (/)  and  our  courts  of  equity  {u)  .  .  .  allow 
the  assignment  of  a  chose  in  action  as  freely  and  directly 
as  the  law  does  that  of  choses  in  possession."  {x) 

The  result  is.  that  a  person  with  whom  a  bond,  or 
other  personal  contract,  is  made,  can  assign  his  interest 
therein  to  a  third  party,  and  such  an  assignment  is  in 
many  points  of  view  recognized,  not  only  in  equity  but 
at  law.  But  the  assignee  can  not  sue  on  the  contract  in 
his  own  name,  but  must  proceed  in  the  name  of  the 
assignor,  or  if  the  assignor  be  dead,  in  the  name  of  his 
personal  representative  ;  i.  e.,  of  his  executor  or  admin- 
istrator, {y)  Though  in  transferring  a  chose  in  action 
as  a  debt  or  bond  it  is  often  found  convenient  to  assign 
it  by  a  deed  in  legal  form,  with  a  power  of  attorney  to 
sue  in  the  name  of  the  assignor,  no  particular  words  {d) 
or  form  of  assignment  seem  to  be  necessary,  and  it  is  said 
that  the  assignee  has  a  right  to  bring  an  action  in  the 
assignor's  name,  and  that  it  is  sufficient  authority  for  the 
attorney  to  commence  proceedings,  if  he  has  received 
instructions  from  the  assignee,  {a) 

In  consequence  (mainly)  of  the  rule  that  a  chose  in 
action  can  not  be  assigned,  combined  with  the  principle 
that  the  courts  of  law  look  only  to  the  parties  on  the 
record,  it  constantly  happens  that  an  action  is  brought  in 
the  name  of  one  person  (the  nominal  plaintiff")  who  has 
no  real  interest  in  the  result,  for  the  benefit  of  another  per- 
son (the  real  plaintiff)  who  is  really  interested. 

This  happens  when  one  person  stands  in  tjie  position 
of  trustee  and  another  in  that  of  cestue  que  trust,   e.  g., 

(/)  Bretherton's  Case,  Dyer,  30/'. 

(m)  Rowe  V.  Dawson,  Tudor,  L.  C.  in  Eq.,  2nd  ed.,  612,  651. 

(;r)  2  Steph.,  Com.,  6th  ed.,  45,  46- 

\y)  Chilty,  Pleading  and  Parties  10  Action,  ytli  ed.,  17. 

(z)  I  Tudor,  L.  C,  2nd  ed.,  653. 

(  1)  Pickford  v,  Ewingion,  4  D.  P.  C.  45. 


GENERAL     RULES. 


'S 


where  A.  is  the  legal  and  B.  the  equitable  owner  of  the 
land  or  where   A.    has  assigned  his  interest  in  a  debt   or 
contract  to  B.),  or  where  a  manager,  clerk,  or  other 
officer  of  a  company  is  empowered   by  law  to   sue      [70J 
on  its  behalf. 

The  plaintiff  on  the  record  (/.  e.,  the  nominal  plaintiff) 
is  still  in,  many  respects  the  sole  person  whom  the  courts 
of  law  will  regard.  He  is  the  person  who  will  be  com- 
pelled to  pay  costs,  (c)  for  the  real  plaintiff  not  being  a 
party  to  the  record  can  not  be  brought  before  the  court, 
and  therefore  can  not  be  compelled  to  pay  them. 

"  The  authority  of  the  courts  at  Westminster  is  de- 
rived from  the  Queen's  writ,  directing  them  to  take  cog- 
nizance of  the  parties  mentioned  in  the  writs  respectively, 
and  thus  bringing  the  parties  before  them.  This  being 
so,  they  have  no  power  to  order  any  particular  individual 
to  come  before  them  at  their  pleasure How- 
ever anxious,  therefore,  we  might  be  to  make  this  rule  " 
[ordering  payment  of  costs  by  the  real  plaintiff  J  "  abso- 
lute, by  doing  so  we  should  establish  a  precedent  which 
would  open  a  wide  sea  to  injustice.  The  cases  where  the 
courts  have  interfered  in  this  way  are  cases  of  exception. 
They  are  cases  where  application  is  made  for  security  for 
costs,  and  even  there  the  order  is  made  in  the  cause,  and 
the  immediate  thing  commanded  is  a  stay  of  proceedings, 
by  which  means  the  ulterior  object  of  a  security  for  costs 
is  obtained.  So  in  ejectment,  which  is  a  fictitious  pro- 
ceeding, the  courts  allow  the  action  to  be  brought  in  the 
name  of  a  nominal  j)laintiff,  and  allow  the  landlord  to 
Cfjnie  in  and  defend,  but  they  take  notice  of  the  real  par- 
ties litigant.  Those  are  the  excepted  cases,  but  the  gene- 
ral rule  is,  that  courts  of  justice  have  no  power  except 
over  parties  to  the  record."  (d) 

The  assignor  of  a  debt,  who  brings  an  action  in  his 
own  name,  can  nf)t  be  stayed   in  his  i)roceedings  on   the 

(c)  Evans  v.    Kecs,   2   Q.    li.   334.   341.     ICxcciH    in    actions  of   Ejectment, 
[hid. 

((/)   Ilayward  v    GifTard,  4  M.  &  W.  196,  197,  jiKli-niuiU  of   Lord  Ahinger 

r.  u. 


86  PARTIES     TO     ACTIONS. 

application  of  the  defendant  and  the  assig^nee,  the  right 
course  apjiarently  being  to  make  application  tc? 
[71]  equity  after  judgment,  to  restrain  the  plaintiff  from 
issuing  execution,  {c)  and  the  courts  have  no  power 
to  compel  a  trustee  to  allow  an  action  to  be  brought  in  his 
name. 

But  though  the  courts  of  law  deal  with  the  plaintiff, 
who  is  only  nominally  interested  in  the  action  as  if  it 
were  brought  on  his  behalf,  they  will,  nevertheless,  indi- 
rectly secure  to  a  great  extent  justice  to  the  three  peisong 
whose  interests  must  be  regarded,  sc,  the  real  plaintiff, 
the  nominal  plaintiff,  and  the  defendant. 

1st.  An  action  brought  by  a  real  plaintiff  in  the  name 
of  a  nominal  plaintiff,  will  not  be  set  aside  merely  on  the 
ground  that  the  nominal  plaintiff  refuses  his  consent  to 
the  action,  [/)  though  it  would  seem  that  the  assent  o! 
the  nominal  plaintiff  should  be  obtained  before  com- 
mencing the  action,  and  that  at  least  an  application  to  him 
should  be  made,  together  with  an  offer  of  a  sufficient  in 
demnity  against  costs,  {g) 

2ndly.  The  courts  will  indirectly  prevent  the  nominal 
plaintiff  from  doing  that  which  he,  like  every  other  plain- 
tiff, has  a  right  to  do,  {h)  sc,  giving  a  release  from  the 
action  to  the  defendant. 

The  courts  used  to  achieve  this  object  in  the  case  of  a 
fraudulent  release,  by  setting  aside  the  plea  of  the  defend- 
ant in  which  such  release  was  pleaded.  The  same  object 
IS  now  more  simply  attained  by  allowing  an  equitable 
replication  setting  out  the  facts  of  the  case.  (?) 

(e)  Sepping  v.  Nokes,  2  C.  B.  292,  294. 

(/)  Spicer  v.  Todd,  i  D.  P.  C.  306.  Conf.,  Auster  v.  Holland,  3  D.  &  L. 
740  ;  Chambers  v.  Donaldson,  9  East,  471.  Com]:)are  Coleman  v.  Biedman,  7 
C.  B.  871  ;  nom.  Coleman  v.  Beadman,  18  L.  J.  263,  C.  P. 

ig)  Spicer  v.  Todd,  1  D.  P.  C.  307. 

(k)  Legh  V.  Legh,  i  B.  &  P.  447  ;  I2  L.  J.  275,  Ex.  ;  Phillips  v.  Claggelt. 
II  M.  &  W.  84  ;  Manning  v.  Cox,  7  Moore,  617. 

^  {i}  De  Pothonier  v.  De  Maitos,  27  L,  J.,  260,  Q.  B.  ;  E.  B.  &  E.  46:.  This 
is,  >o  a  certain  extent,  an  exception  to  the  principle  that  a  replication  must  not 
show  a  merely  equitable  right  in  the  plaintiff'. 

It  seems  doubtful  whether  a  release,  which  is  not  fraudulent,  can  in  any  way 
be  got  rid  of  (Crook  v.  Stephens,  5  B.  N.  C.  688).  But  a  release  by  a  merely 
pominal  plaintiff  almost  always  must  be  fraudulent. 


GENERAL     RULES.  87 

Where  a  nominal  plaintiff,  being  the  officer  of  a 
society,  discharged  the  defendant  from  execution,      [72] 
he  was  attached  for  contempt  of  court,  {k) 

The  courts  will  secure  a  nominal  plaintiff  against  being 
forced  to  pay  the  costs  of  an  action  in  which  he  has  no 
interest,  by  staying  the  action  until  security  for  costs  be 
given  him  :  (/)  and  tTie  real  plaintiff  should,  before  com- 
mencing an  action,  tender  a  sufficient  indemnity  for  costs 
to  the  nominal  plaintiff. 

The  court  may  call  on  the  nominal  plaintiff  to  give 
security  for  costs.  (;;/) 

"  If  a  plaintiff  in  a  cause  be  merely  a  nominal  one,  the 
defendant  may  call  upon  him,  not  the  party  behind,  to 
give  security  for  costs,  and  that  will  probably  bring  the 
real  party  forward."  («) 

This  can  be  done  only  where  the  nominal  plaintiff  is 
m  insolvent  circumstances,  {o) 

This  rule,  though  applying  to  rights  of  action  of  all 
kinds,  is  for  convenience  considered  separate!;,  in  its 
relation  to  actions  on  contract  and  actions  for  forts  re- 
spectively. The  exceptions  to  it  will  be  found  under  the 
rules  as  to  actions  on  contract. 

Rights  of  actions  are  also  transferred  or  assigned  in 
consequence  of  marriage,  bankruptcy,  and  death  ;  and  the 
exceptions  to  the  general  rule  which  thus  arise  are  con- 
sidered in  the  chapters  appropriated  to  these  subjects. 

Rule  7. — No  person  can  be  sued  who    has      \_7z\ 
not  infringed    upon    the    right    in    respect    of 
which  the  action  is  brouj^ht.^ 

o 

(/•)  McGregor  v.  Barrett,  6  C.  B.  262. 

(/)  Auster  v.  Holland,  2  U.  &  L.  740.    Spicer  v.  Todd,  i  I).  I'.  C.  306. 

(m)  Evans  v.  Rees,  2  Q.  B.  334. 

(«)  Spicer  v.  Todd,  i  D.  P.  C.  306. 

io)  Andrews  v.  Marris,  7  D.  P.  C.  712.  See,  as  to  actions  hroiight  without 
authority,  Barker  v.  Rowe,  3  D.  P.  C.  496  ;  IIul)bart  v.  Phillips,  .4  L.  J.  103, 
Ex.;  Ho. liis  V,  Philips,  l6  L.  J.  339.  Q.  B.  ;  Ba)dey  v.  Buckland,  i  Ex.  i; 
16  L.  J.  20J,  Ex.  ;  Stanhope-  v.  Kcrmir.,  3  D.  P.  (-'.  701  ;  Burhcr  v.  Wilkins,  5 
I).  P.  C.  305. 

I.  Rut  where  persons  arc  inter-  and  refuse  to  join  with  him,  they 
ested  the  same  as  plaintiff  in  a  suit,     may     be     made     defendants,     tht 


88 


PA  K  Tins     TO    A  C  TIONS. 


The  object  of  the  forei^oiiig  rules  lias  been  to  determine 
the  person  by  whom  an  action  may  be  brought;  or,  in 
other  woids,  to  answer  in  the  most  general    terms  the 


reason  being  stated  in  the  plead- 
ing. Smith  V.  Sackett,  5  (^ilin. 
545  ;  Cummings  v.  Latliam,4  Mon. 
104;  Cook  V.  Hadiy,  Cooke,  465. 
This  is  true  of  joint  administrators. 
Rizer  v.  Gilipatrick,  16  Kan.  564; 
and  of  members  of  voluntary  asso- 
ciations. Whitney  v.  Mayo,  15  111. 
254.  The  parties  may,  however,  be 
allowed  to  change  to  the  side  of 
their  interest.  Turnham  v.  Turn- 
ham,  3  B.  Mon.  582. 

No  person's  interest  can  be  af- 
fected by  any  suit  to  which  he  is 
not  a  party.  Armstrong  v.  Arm- 
strong, 19  N.  J.  Eq.  359;  Powell  v. 
Finn,  5  Duer,  666;  Hale  v.  Hol- 
land, 92  111.  496 ;  Ex  parte  Hol- 
man,  28  Iowa,  88;  Carney  v.  Em- 
mons, g  Wis.  114 ;  Austin  V  Curtis, 
41  Mich.  723;  Atchison,  &c.,  Ry. 
Co  v.  Commissioners,  12  Kan.  139. 
And  a  party  before  the  court  can- 
not have  a  decree  which  determines 
rights  affecting  also  an  absent  party. 
Reed  v.  Baker,  42  Mich.  272. 

Parties  interested  in  the  subject 
matter  of  a  suit  can  be  made  par- 
ties defendant  any  time,  either  on 
their  spplication  or  that  of  other 
parties,  in  partition.  Parkinson  v. 
Cahlinger,  65  Mo.  293  ;  if  they  have 
interests  affected  by  the  suit.  Greg- 
ory V.  High,  29  Ind.  527  ;  on  credi- 
tor's bills.  Voorhees  v.  Reford.  14 
N.J.  Eq  158;  but  not  in  an  ordi- 
nary action  at  law  by  a  creditor  to 
recover  a  debt.  Askew  v.  Cars- 
well,  63  Ga.  162. 

In  equity  it  is  necessary  that  all 


persons  whose  interests  are  to  be 
affected  by  the  decree,  or  whose 
concurrence  is  necessary  to  the 
determination  of  the  issue,  should 
be  made  defendants  if  they  do  not 
join  as  plaintiffs.  Tobin  v.  Wal- 
kinshaw,  i  McAll.  29  So  there 
may  be  an  end  of  litigation.  Wil- 
liams v.  Bankhcad,  19  Wall.  571  ; 
Williams  v.  Russell,  19  Pick.  165  ; 
Stevenson  v.  Austin  3  Mete.  480; 
Story  V.  Livingston,  13  Pet.  375; 
Hicks  V.  Campbell,  19  N.  J.  Eq. 
186;  Hawkins  V.  Chapman,  36  Md. 
99;  Newcombe  v.  Horton,  18  Wis. 
568  ;  Kimball  v.  Connor,  3  Kan. 
430;  James  v.  Williams,  31  Ark. 
177;  Iglehart  v.  Moore,  21  Tex. 
504. 

No  person  can  be  made  defend- 
ant in  a  cause  except  by  his  own 
consent  or  due  process  of  law,  nor 
can  he  be  affected  by  the  judgment 
of  the  court  except  he  be  a  party. 
Marshall  v.  Drayton,  2  Nott  &  M, 
25.  The  fact  that  a  party  appears 
in  and  defends  an  action  alone  is 
not  evidence  that  he  is  the  party  in 
interest.  Carlton  v.  Patterson,  29 
N.  H.  580.  That  no  one  can  be 
condemned  in  person  or  estate 
without  an  opportunity  of  being 
heard  applies  to  a  statutory  pro- 
ceeding where  the  statute  is  silent 
on  the  subject  of  notice.  State  v. 
Newark,  25  N.  J.  L.  399.  No  per- 
sons are  parties  defendants  to  a 
bill  in  chancery  except  such  as  are 
described  and  named  as  such,  and 
against  whom  a  subpoena  is  prayed. 


GENERAL     RULES. 


89 


question  who  may  be  the  plaintiff  in  an  action.  The  object 
of  this  and  of  the  two  following  rules  is  to  determine  the 
person  against  whom  an  action  may  be  brought,  or,  in 
other  words,  to  answer  in  the  most  general  terms  the 
question  who  may  be  made  defendant  in  an  action. 

A  reply  to  the  first  question  involves  the  answer  to 
the  second  ;  for  when  it  is  laid  down  that  no  one  can  sue 
except  for  the  infringement  of  a  common  law  right,  and 


Verplanck  v.  Mercantile  Ins.  Co.,  2 
Paige,  438 ;  Talmage  v.  Pell,  9 
Paige,  410;  Lucas  v.  Bank  of 
Darien,  2  Stew.  280  ;  Archibald  v. 
Means,  5  Ired.  Ev.  230;  Green  v. 
McKenny,  6  J.  J.  Marsh.  193; 
Carey  v.  Hillhouse,  5  Ga.  251.  But 
merely  naming  persons  as  defend- 
ants and  issuing  process  does  not 
make  them  so  ;  there  must  be  ser- 
vice of  process  either  actual  or  con- 
structive. Estill  V.  Clay,  2  A.  K. 
Marsh.  497.  One  who  is  neither 
party  nor  privy  to  a  proceeding  in 
equity  is  not  bound  by  it.  Lang  v. 
Waring,  17  Ala.  145.  And  publi- 
cation against  persons  not  made 
defendants  to  the  bill  does  not 
make  them  parties  to  the  suit. 
Letcher  v.  Schroeder,  5  J.  J.  Marsh. 
513;  Taylor  v.  Bate,  4  T.  B.  Mon. 
267.  The  rule  that  a  state  cannot 
be  sued  in  its  own  courts  applies 
only  when  it  is  a  party  to  the 
record,  and  not  when  it  is  inter- 
ested in  the  subject  matter  of  a  suit 
against  its  officers  in  their  official 
capacity.  Michigan  .State  Bank  v. 
Hastings,  i  Doug.  225.  The  court 
may  require  evidence  that  persons 
beyond  the  jurisdiction  named  as 
parties  have  actual  knowledge  of 
the  suit  before  a  hearing  on  the 
merits  Lawrence  v.  Kokes,  53  Me. 
no.     In   this  case,  Kent,  J.,  says; 


"  This  question  is  one  that  has 
perplexed  courts  of  equity  as  well 
as  courts  of  law.  It  is  urged  that 
there  are  cases  where,  to  dismiss  a 
bill  or  suit  because  a  part  of  the  de- 
fendants are  out  of  jurisdiction  and 
cannot  be  compelled  to  come  in,  is 
a  practical  denial  of  justice,  and 
enables  dishonest  or  reluctant  de- 
fendants to  escape  from  any  judg- 
ment or  recovery  against  them  by 
separating  and  having  their  domi- 
cile in  different  states  or  in  a  foreign 
country.     *     *    * 

"  On  consideration  and  compari- 
son of  authorities  and  of  the  reasons 
on  which  they  are  based,  we  can 
find  no  better  rule,  as  a  general 
one,  subject,  of  course,  to  excep- 
tions in  peculiar  cases,  than  the 
following  :  When  it  is  certain,  by 
the  fair  construction  of  the  bill 
itself,  or  becomes  so  at  the  the  hear- 
ing or  in  any  stage  of  the  proceed- 
ings, that  the  judgment  or  decree 
must  necessarily  be  directly  against 
the  absent  defendant,  and  that  no 
judgment  or  decree  can  be  made 
against  the  party  before  the  court, 
without  embracing  the  absent  and 
binding  them  or  property  in  which 
they  have  an  interest,  the  hearing 
cannot  ordinarily  proceed  without 
them." 


90  PARTJES     TO    ACTIONS. 

that  every  person  can  sue  who  has  sufl'ered  an  infringe- 
nient  of  a  common  law  right,  it  lt)llows  that  no  one  can 
be  sued  who  has  not  inliinged  upon  a  common  law  right 
of  another's,  and  that  any  person  can  be  sued  who  has 
infringed  upon  such  a  right.  Still,  though  the  general 
rules  as  to  plaintifl's  involve  in  themselves  to  a  great  ex- 
tent the  general  rules  as  to  defendants,  confusion  is 
avoided  by  considering  the  latter  rules  separately. 

X.  is  not  liable  to  be  sued  by  A.  unless  he  has  in- 
fringed upon  some  right  of  A.'s.  As  A.'s  rights  either 
depend  upon  a  contract  between  him  and  X.,  or  exist  in- 
dependently of  any  contract  between  him  and  X.,  X.,  if 
he  has  violated  A.'s  rights,  must  have  broken  a  contract, 
or  have  infringed  upon  a  right  independent  of  contract, 
that  is,  have  committed  a  wrong. 

The  general  rule  in  its  application  to  actions  for 
breach  of  contract  hardly  admits  of  any  explanation 
clearer  than  the  statement  of  it.  It  amounts,  in  fact, 
[74]  to  this  :  that  X.  can  not  be  sued  by  A.  for  the  breach 
of  any  contract  to  which  X.  is  a  stranger ;  {q)  or,. 
in  other  words,  that  X.  can  not  be  sued  for  breaking  a 
contract  which  X.  has  not  made.  Confusion,  neverthe- 
less, has  occasionally  arisen  from  a  neglect  of  this  prin- 
ciple. 

X.,  for  example,  professes  to  be  acting  as  an  agent  for 
Y.,  and  to  have  power  to  contract  on  Y.'s  behalf  with  A. 
As  a  matter  of  fact,  X.  has  no  authority  to  enter  into  an 
agreement  with  A.  on  behalf  of  Y.,  and  A.,  therefore, 
after  having  been  induced  by  X.  to  contract,  finds  it  im- 
possible to  enforce  the  contract  against  Y.  {r) 

It  was  at  one  time  thought  {s)  that  A.,  under  these 
circumstances,  could  sue  X.  for  the  breach  of  the  contract 
which  X.  alleged  he  had  authority  to  make  between  A. 

iq)  There  is  an  apparent  exception  to  this  principle  in  those  cases  in  wliicli 
an  agent  can  be  sued  for  a  contract  made  by  his  principal  ;  but  they  really  il- 
lustrate the  rule,  for  in  each  of  these  cases,  it  will  Ise  found  that  the  agent  is 
liable,  because  he  makes  himself  a  party  to  the  contract.     See  Chapter  XII. 

(r)  Chapter  XII. 

(j)  See  Chandelor  v.  Lopus,  I  Smith,  L.  C,  6th  ed..  170  ;  Thompson  v 
Davenport,  2  Smith.  L.  C,  6lh  ed.,  327. 


GENERAL     RULES.  91 

and  Y.  It  is  now  settled  that  on  that  contract  A.  can  not 
sue  X.  "  I  always  thought,"  it  has  been  said  by  Lord 
Campbell,  C.  J.,  "  that  the  notion  of  suing  an  agent  in 
such  a  case  as  principal  was  absurd.  For  instance,  in  the 
case  of  a  man  promising  that  another  shall  marry  a 
woman,  and  it  turning  out  that  he  had  not  authority  to 
make  the  promise — could  he  be  sued  for  breach  of  prom- 
ise of  marriage  ?  But  it  is  clear  that  an  agent  gives  a 
warranty  that  he  is  agent  when  he  signs  as  agent,  and  he 
is  liable  to  make  a  recompense  to  the  party  to  whom  he 
represents  himself  as  agent  for  the  damage  which  he  has 
caused  by  the  breach  of  the  warranty."  {t)  He  may 
sue  X.,  if  there  has  been  fraud,  for  fraudulently  rep-  [75] 
resenting  that  he  had  authority  to  contract  for  Y., 
for  this  is  a  distinct  wrong  done  to  him  by  X.  independ- 
ently of  the  contract.  He  may  also  sue  X.  for  an  implied 
warranty,  /.  ^.,  on  a  contract  arising  from  the  whole  cir- 
cumstances of  the  transaction  between  him  and  X.,  that 
X.  had  authority  from  Y.  to  contract  for  him.  {ic) 

There  is  more  difficulty  in  the  application  of  the  rule 
to  actions  for  torts,  since  X.  may,  by  his  conduct,  occa- 
sion damage  to  A.,  and  yet  it  may  be  hard  to  decide 
whether  X.  has  or  has  not  infringed  upon  A.'s  rights. 
This  difficulty  is  specially  apt  to  arise  in  cases  in  which  it 
is  essential  for  A.,  in  order  to  maintain  his  action  against 
X.,  to  show  that  actual  damage  has  resulted  to  him  from 
the  acts  of  X.  X.'s  liability  depends  upon  his  being  "  the 
cause"  of  the  wrong,  but  he  is  not  in  law  considered  the 
cause  unless  the  damage  can  be  naturally  and  clearly  con- 
nected with  his  acts  or  omissions;  {x)  and  it  may  be  diffi- 
cult to  show  that  the  damage  to  A.  is  the  natural  result 
of  X.'s  conduct,   and,  again,  though  X.'s  negligence  mav 

(0  Collen  V.  Wright,  26  L.  J.  150,  Q.  B.,  jier  Campbelt,,  C.  J.  Compare 
as  to  liability  of  auctioneers,  Warlow  v.  Harrison,  28  L.  J.  18,  Q.  B.  ;  29  L.  J. 
14,  Q.  B.  (Ex.  Ch.);   Benjamin,  Sale,  353-357. 

(u)  Se  Collen  v.  Wiii^ht,  7  E.  &  B.  301  ;  26  L.  J.  147,  Q.  B.  ;  27  L.  J.  215. 
Q.  B.  :  Uanrlall  v.  Trimmen,  18  C.  B.  786;  25  L.  J.  307,  C.  P.;  Simons  v 
Patchelt,  7  E.  &  B.  568  ;  26  L.  J.  195,  Q.  B.  See  further  on  this  point.  Chap 
terXH. 

(x)  See  Chapter  XXV. 


92  PA  R  77 KS     TO    ACT70NS. 

indiibitabl}'  occasion  damage  to  A.,  still,  if  A.'s  own  negli- 
g-ence  contribute  to  the  result,  X.'s  negligence  is  not 
considered  the  cause  of  the  damage,  and  he  is  not  liable 
on  account  of  what  is  termed  the  contributory  negligence 
ofA.O') 

[76]  Rule  8. — Every  person   can  be  sued  who 

infringes  upon  the  right  of  another. 

This  rule  is  in  its  application  to  breaches  of  contract 
perfectly  simple.  Any  person  who  makes  a  contract 
infringes  upon  the  right  of  another  by  even  the  slightest 
omission  to  perform  that  which  he  has  contracted  for. 
If,  therefore,  X.  conti-acts  with  A.,  X.  can  be  sued  by  A. 
for  every  breach  of  the  contract,  and  all  that  need  be 
established  in  order  to  make  X.  liable  is  that  he  has 
made  the  contract  with  A.,  and  that  he  has  broken  it.  {z) 

Similarly,  if  X.  causes  an  "  injury  "  to  A.,  or,  in  other 
words,  invades  any  right  of  A.'s  which  exists  indepen- 
dently of  contract,  X.  is  liable  to  an  action  by  A.  If  the 
act  complained  of  is  one  actionable  in  itself,  e.  g.,  an 
assault,  the  publication  of  a  libel,  &c.,  all  that  is  necessary 
in  order  to  make  X.  liable  is  to  show  that  the  act  com- 
plained of  was  the  act  of  X. 

If,  on  the  other  hand,  X.'s  act  is  one  the  wrongfulness 
of  which  depends  upon  the  actual  damage  caused  by  it  to 
A.,  {a)  e.  g.,  where  X.  uses  defamatory  language  about  A., 
actionable  only  by  reason  of  the  resulting  damage,  then 
it  is  necessary  to  show,  in  order  to  make  X.  liable,  first, 
the  utterance  of  the  slander  by  him,  and  secondly,  the 
damage  resulting  to  A. 

Rule  9. — The  liability  to  be  sued  can  not  be 
transferred  or  assigned. 

{y)  Ibid. 

(2)  Chapter  XXV. 

{a)  See  ante. 


GENERAL     RULES.  93 

If  X.  be  under  a  ccntract  with  A.,  or  if  X.   has  com- 
mitted a  tort  against  A.,  he   can   not   transfer   or 
assign  to  Y.  his  liability  to  be  sued  for  breach  of  the     {yy'] 
contract,  or  for  the  tort  by  A. 

The  exceptions  to  this  rule  are  :  the  assignment  of 
liabilities  on  covenants  which  "  run  with  the  land,"  the 
assignment  of  liability  for  a  debt  bj'  agreement  among 
all  the  parties  interested,  and  the  assignment  of  liabilities 
in  consequence  of  marriage,  bankrupty,  or  death,  {c) 

(c)  See  Chapter  XI. 


94 


PARTIES     TO    ACTIONS. 


CHAPTER  IV. 

ACTIONS    ON    CONTRACT. 
PLAINTIFFS. — GENERAL  RULES. 

Rule  id. — No  one  can  sue  for  the  breach  of  a 
contract  who  is  not  a  party  to  the  contract,  {ay 

This  rule  is  often  expressed  in  the  maxim  that  no  one 
can  sue  on  a  contract  "  who  is  a  stranger  to  the  contract," 


{a)  This  rule  applies  in  strictness  onlv  to  the  original  parties  to  the  contract. 
To  make  it  complete  should  be  added  the  words,  "  or  who  does  not  derive 
rights  from  an  original  party  to  the  contract."  This  addition  is  needed  in 
order  to  include  the  case  of  executors  and  others  who  sue  as  representing  origi- 
nal parties  to  a  contract.     The  same  remark  applies  to  Rules  ii  and  12. 


I.  Sisson  V.  Cleveland,  14  Mich. 
496;  Kennison  v.  Ham,  20  N.  H. 
507  ;  Corbett  v.  Schumacker,  83  111. 
405 ;  Cobb  V.  I.  C.  Ry.  Co ,  38 
Iowa,  616  ;  Jamison  v,  Jarrett,  4  Ind. 
188;  Keane  v.  Fisher,  9  La.  Ann. 
74:  Albany  Exch.  Bank  v.  Sage.  6 
Hill,  563 ;  Sumner  v.  Sleeth,  87 
111.  502  ;  Ryer  v.  Stockwell,  14  Cal. 
135  ;  State  v.  Rhoades,  7  Nev.  440. 
But  it  is  a  no  less  general  rule  that 
actions  upon  any  contract,  whether 
express  or  implied,  parol,  under 
seal,  or  of  record,  must  be  brought 
in  the  name  of  the  parties  legally 
interested.  Kountz  v.  Holthonse, 
85  Pa.  St.  237 ;  Anderson  v.  Wil- 
liams, 2  Cash.  686 ;  Kenniston  v. 
Ham,  29  N.  H.  507  ;  Larned  v.  Car- 
penter, 65  111.  544;  Commonwealth 


V.  Hughes,  8  B.  Mon.  400;  Shot- 
well  V.  Gilkey,  31  Ala.  727  ;  Hath- 
cock  V.  Owen,  44  Miss  802  ;  Keane 
V.  Fisher,  9  La.  Ann.  74  ;  Phillips 
V.  Pennywit,  i  Ark.  61. 

The  legal  interest  in  a  contract 
is  in  the  person  from  whom  the 
consideration  flows  and  to  whom 
the  contract  was  made,  and  he  con- 
sequently must  sue.  Exchange 
Bank  v.  Rice,  107  Mass.  41 ;  Hall 
V.  Huntoon,  17  Vt.  244;  Fugure  v. 
Mutual  Society,  46  Vt.  369;  Gard- 
ner V.  Armstrong,  31  Mo.  538  ; 
Treat  v.  Stanton,  14  Conn.  451. 

The  plaintiff  must  have  a  real 
interest  subsisting  at  the  com- 
mencement of  the  action.  Leber- 
man  v.  New  Orleans,  &c.,  Co.,  28 
La.  Ann.  412;    Winter  v.  City  of 


ACTIONS     ON    CONTRACT.  95 

or  "  who  is  not  privy  to  it."  In  whatever  words  expressed 
it  embodies  the  principle  that  "rights  founded  on  con- 
tract belong  to  the  person  who  has  stipulated  for  them,"((^) 
and  to  no  other,  and,  therefore,  that  no  one  can  sue  for 
the  non-performance  of  an  agreement  to  which  he  was  not 
either  directly  or  through  his  agent  a  party,  {c) 

The  reason  why  A.  can  sue  X.  for  a  breach  of  con- 
tract is,  that  A.  has,  in  virtue  of  X.'s  promise  to  him, 
acquired  certain  rights  against  X.,  which  X.  infringes  upon 
by  breaking  his  agreement.  But  as  these  rights  depend 
upon  the  promise  made  by  X.  to  A.,  they  can  not  be  the 
rights  of  any  third  party,  M.,  to  whom  A.  has  not  made 
a  promise,  i.  e.,  who  is  not  a  party  to  the  contract.  The 
breach,  therefore,  of  the  contract,  even  though  it 
may  damage  M.,  does,  not  interfere  with  M.'s  rights,  [79] 
and  therefore  gives  M.  no  right  of  action,  (e) 

To  look  at  the  same  thing  from  another  point  of  view : 
X.,  the  contractor,  incurs  a"  duty  "  towards  A.,  the  other 
party  to  the  agreement,  to  perform  his  contract,  but  he 
comes  under  no  obligation  in  respect  of  the  agreement 
towards  any  third  person,  M.  If,  therefore,  X.  breaks 
his  promise,  he  is  liable  to  an  action  by  A.,  but  is  not 
liable  to  be  sued  by  M.  It  is,  in  short,  "clear  tha^;  an 
action  of  contract  can  not   be  maintained  by  a   person 

(l>)  Alton  V.  Midland  Rail.  Co..  19  C.  B.,  N.  S.,  240. 
(f)  Ibid, 
(if)  Rule  2. 

New  Orleans,  26  La.  Ann.  310.     A  Nelson   v.   Johnson,    18   Ind.    332. 

contingent  and  uncertain  interest  is  He  can,   at  law,  only  maintain  an 

not  sufficient.     Keene's  Appeal.  60  action    against    his   immediate   as- 

Pa.  St.  510.     When  the  plaintiff  is  signer;  but  in  equity  he  can  reach 

not  a  party  to  the  instrument  sued  a     remote     assignor.      Weaver    v. 

on,  his  interest  should  be  affirma-  Beard,    21     Mo.    156;     Tucker    v. 

tively  shown  in  the  pleading.  Hick-  Shiner,   24   Iowa,    334;    Harris    v. 

lin  V.  Nebraska  City  Nat.  Bank,  8  Johnston,  3  Cranch,  311  ;  Johnson 

Neb.  465.  V.  Henderson,  76  N.  C.  228;   Hclfer 

Thc  assignee  of  a  non-negotiable  v.   y\lden,    3    Minn.    332;    but   see 

note   or   bond   must   style   himself  Hamilton    v.    McDonald,    18    Cal. 

assignee     in     the    writ.     Thomp-  129. 
son     V.     Malone,    13     Rich.    293; 


96  PARTIES     TO    ACTIONS. 

who  is  not  a  party  to  the  contract;  and  the  same  prin- 
ciple extends  to  an  action  of  tort  arising  out  of  a 
contract."  (/) 

No  one,  therefore,  can  bring  an  action  for  a  breach  oi 
contract  merely  because  he  thereby  suffers  loss  or  damage, 
smce  a  person  ma}'  be  damaged  by  the  L~each  of  a  con- 
tract to  which  he  is  not  a  party,  and  under  which,  there- 
fore, he  has  no  rights.  The  loss  he  suffers,  in  so  far,  ol 
course,  as  it  arises  merely  from  the  breach  of  the  con- 
tract, is  damnum  absque  injuria,  and  affords  no  cause  of 
action,  {g) 

X.,  for  example,  contracts  with  A.  to  pay  M.  iJ"2o.  If 
the  money  is  not  paid,  M.,  though  interested  in  the  per- 
formance of  the  agreement,  can  not  sue  X. ;  [h)  the  action 
must  be  brought  by  A. 

X.  enters  into  a  contract  with  A.,  and  his  non-per- 
formance of  it  indirectly  injures  M. ;  M.  can  not,  and  A. 
can,  sue  X.  (/') 

Contracts  are  divided  into  "  simple  "  (or  "  parol  ") 
contracts,  i.  e.,  agreements  (whether  by  word  of  mouth 
or  in  writing)  which  are  not  under  seal,  and  specialties 
/.  e.,  contracts  either  under  seal  (or  by  deed),  or  of 
'80]  record.  If  contracts  of  record,  to  which  it  is  not 
necessary  to  do  more  than  refer,  be  omitted,  agree- 
.nents  may  be  divided  into  contracts  not  under  seal, 
t.  r.,  simple  contracts,  and  contracts  under  seal,  i.  e., 
deeds,  {k) 

As  no  one  can  sue  on  a  contract  who  is  not  a  party  to 
it,  and  it  is  obvious  that  the  person  with  whom  a  contract  is 
made  can  sue  upon  it,  the  point  to  be  ascertained  in  de- 
cerminmg  who  ought  to  be  the  plaintiff  in  an  action  fo'" 


(/)  Tollit  V.  Shenstone.  5  M.  &  W.  289;  8  L.  J.  244,  Ex.,  judgment  of 
Mai.ii.E,  Ji.     Winterbottom  v.  Wright,  10  M.  &  W.  116  ;   11  L.  J.  415,  Ex. 

( 0-)  See  ante. 

I k)  Crowe  V.  Rogers,  i  Str.  592  ;   Price  v.  Eastoii,  4  B.  &  Ad.  433. 

ii)  Winterbottom  V.  Wright,  lO  M.  &  W.  116  ;  11  L.  J.  415,  Ex.  ;  Alton  v. 
Midland  Kail  Co.,  19  C.  R.,  N.  S.,  219  ;  34  L.  J.  292,  C.  P. 

{k)  Rann  v.  Hughes,  7  T.  R.  251.  "  All  contracts  are,  by  the  laws  of  Eng- 
'and,  di.->tingiiished  into  agreements  by  specialty  and  agreements  by  paro*..'' 
Ccnf.  Von  .Mierop  v.  Hopkins.  3  Fuirr.  i6fn. 


ACTIONS     ON    CONTRACT.  97 

breach  of  contract  is,  who  is  the  person  with  whom  the 
contract  is,  in  point  of  law,  considered  to  be  made. 

Rule  1 1  determines  who  is  the  person  who  must  sue 
for  the  breach  of  a  simple  contract,  /.  e.,  who  is  the  person 
with  whom  such  a  contract  must  be  considered  to  be 
made. 

Rule  12  determines  who  is  the  person  who  must  sue 
for  the  breach  of  a  contract  by  deed,  i.  e.,  who  is  the 
person  with  whom  such  a  contract  must  be  considered  to 
be  made. 

Torts  founded  o?i  contract. — Attempts  have  often  been 
made  to  evade  the  rule  that  no  one  can  sue  on  a  contract 
who  is  not  a  party  to  it,  by  bringing  what  is  in  reality  an 
action  for  breach  of  contract  in  the  form  of  an  action  for 
tort.  These  attempts  have  always  failed  whenever  the 
action  was  considered  by  the  Court  to  be  in  substance 
grounded  on  contract.  (/) 


Rule     ii. — The    person    to  sue    for    the      [81] 
oreach  of  a  simple  contract  must  be  the  person 
from    whom     the     consideration     for     the    promise 
moves,  (ill) 

A  mere  promise  by  one  person  to  another  does  not 
(unless  made  by  deed)  constitute  a  contract.  If  X.,  either 
by  word  of  mouth  or  in  writing,  e.  g.,  by  letter,  promise 
A.  to  pay  him  ;^ioo,  this  does  not  constitute  a  contract 
between  A.  and  X. ;  and  if  X.  does  not  keep  his  promise 
A.  has  no  remedy  against  him. 

To  constitute  a  va'id  simple  (or  parol)  contract,  i.  e., 
an  agreement  not  under  seal,  three  things  are  necessary  : 
"  a  promisor,"  or  "  person  who  promises,"  "  a  promisee," 
or  "person  to  whom  a  promise  is  made,"  and  lastly, 
"a  consideration,"  or  "inducement  to   the  promisor  to 

(/)  See  further,  as  to  such  actions,  Chapter  XIX.  The  exceptions  to  Rule 
10  are  also  exceptions  to  Rule  ii,  and  arc  considered  in  that  light.  See 
tost. 

(m)  Smart  v.  Chcll,  7  Dowl.  785. 
7 


98  PARTIES     TO    ACTIONS. 

make  the  promise."  Thus,  if  X.  buys  goods  from  A.,  and 
promises  to  pay  him  ;^20  for  them,  there  are  all  the 
requisites  for  a  binding  contract.  X.  is  the  "  promisor," 
A.  is  the  "  promisee,"  the  supply  of  the  goods  by  A.  to 
X.  is  the  "  consideration  or  inducement  for  X's  promise." 
The  promise  need  not  be  made  in  so  many  words,  but 
may  be  what  is  called  implied ;  («)  and  is  binding,  though 
not  made  to  a  definite  person,  if  it  be  made  to  him  as  the 
member  of  a  class.     X.,  for  example,  offers  a  reward  to 

any  person  who  will  find  a  watch  which  he  has  lost. 
|82^      The  promise  is  as  much  a  promise  made  to  A.,  the 

finder,  as  if  it  had  been  a  promise  made  directly 
by  X.  to  A.  to  pay  him  a  reward  if  he  found  X's  watch,  (o) 
The  consideration  or  inducement  may  be  described  as 
"  some  matter  agreed  upon  as  a  return  or  equivalent  for 
the  promise  made,  showing  that  the  promise  is.  not  made 
gratuitously."  (/)  "  A  consideration  is  any  act  of  the 
plaintiff  [the  promisee]  from  which  the  defendant  [the 
promisor]  derives  or  expects  to  derive  any  advantage,  or 
any  labor,  detriment,  or  inconvenience  sustained  by  the 
plaintiff,  however  small  the  benefit  or  inconvenience  may 
be,  if  such  act  is  performed  or  such  inconvenience  suffered 
by  the  plaintiff  at  the  request  or  with  the  consent,  either 
express  or  implied,  of  the  defendant."  {q)  The  consider- 
ation may  therefore  be  defined  in  very  general  terms  as 
any  inducement  offered  by  one  party  to  another  to  induce 
the  other  to  contract  with  him.  (r) 

(w)  A  promise  is  called  implied  in  at  least  three  cases, — I.  Where  there  is  a 
contract  between  two  parties,  the  terms  of  which  are  distinctly  understood  but 
not  expressed  in  so  many  words  ;  2,  where  there  is  a  contract  between  t  vo 
parties,  some  of  the  terms  of  which  are  not  fixed  by  themselves,  but  are  affixed 
oy  the  law  to  the  relation  in  which  they  stand  ;  as  where  X.  undertakes  to 
carry  the  goods  of  A.,  and  thereby  incurs  the  liabilities  of  a  c.irrier  ;  3,  where 
no  contract  exists,  but  one  party  is  considered  by  the  law  to  have  the  same 
rights  against  another  which  he  would  have  were  there  a  contract  between 
them  ;  as  where  A.  is  compelled  to  pay  money  which  X.  is  legally  bound  to 
pay,  and  the  law  implies  a  promise  on  X.'s  part  to  repay  it. 

[o)  Williams  v.  Carvvardine,  4  B.  &  Ad.  621. 

(/)  Leake,  Contracts,  10. 

(  q)  I  Selwyn,  N.  P.,  13th  ed.,  55. 

(r)  Looked  at  from  the  side  of  the  promisee,  the  consideration  might  be 
more  accurately  described  as  any  act,  &c.,  which  one  person  is  induced  by 
another  10  perform  in  return  for  that  other's  promise.     It  must   be  remembered 


ACTIONS     ON    CONTRACT.  99 

To  make  the  contract  valid,  not  only  must  there  be  a 
consideration  or  inducement,  but  the  consideration  must 
proceed  from  the  promisee,  or,  more  strictly,  the  la^^ 
considers  the  promise  to  be  made  to  the  person  from 
whom  the  inducement  to  make  it  comes  ;  or,  in  other 
words,  "  from  whom  the  consideration  moves." 

As  the  person  to  sue  for  the  breach  of  an  agreement 
must  be  the  person  with  whom  the  agreement  is  made, 
or,  in  other  words,  to  whom  the  defendant  has  made  a 
promise,  it  follows  that  the  person  to  sue  for  the  breach 
of  a  simple  contract  must  be  the  person  "  from  whom  the 
consideration  moves,"  since,  as  already  explained, 
he  is  the  person  to  whom  the  law  considers  the  [83] 
promise  to  have  been  made.  He  need  not,  how- 
ever, necessarily  be  the  person  to  receive  benefit  from  the 
performance,  or  to  suffer  from  the  breach  of  the  agree- 
ment. 

A.,  for  example,  stipulates  with  X.  that,  in  considera- 
tion of  a  payment  made,  or  other  service  rendered  by  A. 
to  X.,  X.  shall  build  a  house  for  M.  X.  breaks  his  con- 
tract. The  person  to  sue  X.  is  not  M.,  who  suffers  by  the 
house  not  being  built,  but  A.,  since  the  consideration 
moved  not  from  M.,  but  from  A. 

Any  difficulty  in  understanding  this  rule  arises  either 
from  forgetfulness  of  the  fact  that  a  mere  promise  by 
word  of  mouth  or  in  writing  (if  not  under  seal)  does  not 
constitute  a  contract,  or  from  the  failure  to  observe  that, 
though  ordinarily  the  person  from  whom  the  considera- 
tion moves  is  also  the  person  who  will  derive  benefit  from 
the  performance  of  the  contract,  yet  it  may  equally  well 
happen  that  the  consideration  moves  from  one  person,  and 
that  another  person  be  benefitted  by  the  performance,  01 
lose  by  the  breach  of  the  contract.  That  this  is  so  is 
nK)st  easily  seen  from  examples. 

A.,  the  plaintiff,  had  a  claim  against  M.  for  a  debt  of 
/"70.       X.,  the  defendant,  undeitook,  in   consideration  of 

lliat  III  III  iny  (,i ■,(•-,  ilic  coiitmct  flocs  not  hfgin  l)y  an  offer  on  the  part  of  the 
;)romisec,  Imt  by  a  promise  on  the  part  of  the  promisor  of  some  advanlage,  e.g., 
p.iyment,  'f  the  j)romisec  pcrfnrin  sonif  act. 


.oo  PARTIES     TO    ACTIONS. 

M.  making  a  title  for  X.,  to  pay  A.  the  £yo.  A.  was  held 
to  have  no  right  of  action  against  X.,  since  the  considera- 
tion moved  from  M.,  and  not  from  A.  {s) 

In  consideration  that  M.  would  work  for  X.  (the  de- 
fendant), X.  undertook  to  pay  a  certain  sum  to  A.  (the 
plaintiff).  The  declaration  in  this  case  did  not  "  show 
any  consideration  moving  from  the  plaintiff  to  the  de- 
fendant." (/)  Hence,  the  plaintiff  was  held  to  have  no 
cause  of  action.  As  there  was  no  privity  shown  between 
the  plaintiff  and  the  defendant,  the  case  was  held  precisely 
like  Crowe  v.  Rogers,  and  was  governed  by  it.  {71) 
[84]  After  a  marriage  between  A.  (the  plaintiff)  and  M.'s 
daughter,  N.,  the  father  of  A,,  and  M.  agreed,  with 
a  view  to  provide  a  marriage  portion,  to  pay  two  sums  of 
money  to  A. ;  and,  further,  that  A.  should  have  power  to 
sue  for  the  same  in  any  court  of  law  or  of  equity.  It  was 
held,  nevertheless,  that  A.  could  not  bring  an  action 
asrainst  X.,  the  executor  of  M.,  for  that  no  consideration 
moved  from  A.  {x) 

Had  the  agreement  been  made  before  the  marriage  (A. 
being  a  party  thereto),  there  would  have  been  a  good 
consideration  moving  from  A.,  i.  e.,  the  subsequent  mar- 
riage with  the  daughter  of  M.  {y) 

This  case  disposes  of  early  decisions  from  which  it 
might  appear  that  a  person  not  a  party  to  the  contract 
could  sue  on  the  ground  of  his  interest  in  the  contract, 
combined  with  his  near  relationship  to  a  party  to  the  con- 
tract. 

"  Some  of  the  old  decisions  appear  to  support  the  pro- 
position that  a  stranger  to  the  consideration  of  a  contract 
may  maintain  an  action  upon  it  if  he  stands  in  such  near 
relationship  to  the  party  from  whom  the  consideration 
proceeds  that  he  may  be  considered  a  party  to  the  con- 
sideration.    The  strongest  of  those  cases  is  that  cited  in 

(j)  Crowe  V.  Rogers,  i  Str.  592. 

(/)  Price  V.  Easton,  4  H.  &  Ad.  434,  judgment  of  Denman,  C.  J. 
(m)  Ibid.,  judgnrent  of  LiTTLEDALE,  J. 

{x)  Twcddle  v.  Atkinson,  I  B.  &  S.  393  ;  30  L.  J.  265,  Q.  B. 
{y)  Shadwell   v.   Shadwell,   9  C.   B.,  N.   S.,   159;  30  L.  J.  145.  C.  P.  (£> 
Ch.V 


ACTIONS     ON    CONTRACT.  loi 

Bourne  v.  Mason,  {s)  in  which  it  was  held  that  the  daugh- 
ter of  a  physician  might  maintain  assumpsit  upon  a 
promise  to  her  father  to  give  her  a  sum  of  money  if  he 
performed  a  certain  cure.  But  there  is  no  modern  case 
in  which  the  proposition  has  been  supported.  On  the 
contrary-,  it  is  now  established  that  no  stranger  to  the 
consideration  can  take  advantage  of  a  contract,  although 
made  for  his  benefit,  {a)  At  the  time  when  the  cases 
.  .  .  .  cited  were  decided,  the  action  of  assumpsit 
was  treated  as  an  action  of  trespass  upon  the  case, 
and,  therefore,  in  the  nature  of  a  tort ;  {b)  and  the  [85] 
law  was  not  settled  as  it  now  is,  that  natural  love 
and  affection  is  not  a  sufficient  consideration  for  a  prom- 
ise upon  which  an  action  may  be  maintained,  nor  was  it 
settled  that  the  promisee  can  not  bring  an  action  unless  the 
consideration  moved  from  him.  The  modern  cases  have 
in  effect  overruled  the  old  decisions.  They  show  that  the 
consideration  must  move  from  the  party  entitled  to  sue 
upon  the  contract."  {c) 

A.  became  the  purchaser  and  bearer  of  shares  in  a 
company  of  which  X.  (the  defendant)  was  managing  di- 
rector. A.  was  induced  to  become  such  purchaser  and 
bearer,  through  confidence  in  the  promise  by  X.  of  certain 
advantages  to  all  bearers  of  shares  in  the  company,  and 
sued  X.  for  the  non-performance  of  this  promise.  It  was 
held,  that  A.  could  not  sue  X.  for  breach  of  contract,  for 
that  there  was  no  consideration  for  the  promise,  {d) 

"  There  seems  to  us,"  it  is  said  in  the  judgment  in  this 
case,  "as  between  these  parties  to  be  an  entire  want  of 
consideration  for  the  promise.  It  is  not  stated,  nor  does 
It  appear,  that  from  the  plaintiff's  buying  and  becoming 
bearer  <jf  these  shares,  any  benefit  accrued  to  the  defend- 
ant, or  that  at  the  time  when  the  contract  is  supposed  to 

(«)  I  Vcntr.  6. 

(a)  Twffiflle  V.  Atkinson,  i  U.  &  S.  397  ;  30  L.  J.  267,  Q.   15.,  judgment  ot 
WiGIITMAN.  J. 
(/')  See  3»/f. 
(c)  Tweddle  v.  Atkinson,  I  15.  &  S.  39S  ;  30  L.  J.  267,   Q.    15.,  judgment   of 

CROMJ'TON.  J. 

(«/)  Gerhard  v.  Hates  2  K.  I't  15.  476  ;  22  L.  J.  364,  Q.  B. 


ro2  PARJIES     TO     ACTIONS. 

have  been  entered  into,  any  {)rcjudice  accrued  to  the 
plaintiff.  A  prejudice  to  the  promisee  incurred  at  the 
request  of  the  promisor,  may  be  a  consideration  as  well 
IS  a  benefit  to  the  promisor  proceeding  from  the  promi- 
see. But  this  must  be  a  prejudice  on  entering  into  the 
contract,  not  a  prejudice  from  the  breach  of  it,"  {e) 

This  case  should,  however,  be  distinguished  from  the 
cases  in  which  it  has  been  held  that  an  action  may 
1^6]  be  maintained  for  a  reward  offered  in  a  public  ad- 
vertisement. They  are  somewhat  peculiar,  "  bu» 
in  these  cases  there  is  a  distinct  promise  to  any  one  who 
shall  make  the  discovery,  and  there  is  a  good  considera- 
tion for  the  promise  in  the  benefit  to  accrue  to  the 
promisor,  as  in  showing  that  he  is  heir-at-law  to  a  person 
who  died  seized  of  real  property  and  intestate,  or  preju- 
dice to  the  promisee,  as  that  he  shall  entitle  himself  to  the 
reward  by  voluntarily  coming  forward  as  a  witness."  {/) 

It  has  been  held  that  the  receiver  of  a  telegraphic 
message  could  not  maintain  an  action  against  the  com- 
pany for  a  mistake  in  transmitting  the  message,  whereby 
he  has  been  damnified,  [g)  This  decision  rested  on  the 
ground  that  the  obligation  of  the  company  to  use  due 
care  and  skill  in  the  transmission  of  the  message  was  one 
entirely  arising  out  of  the  contract,  and  that  the  contract 
was  made  with  the  sender  of  the  message.  This  case 
exactly  illustrates  the  general  rule.  The  person  damaged, 
i.  e.,  the  receiver  of  the  message,  was  not  the  person  with 
whom  the  contract  was  made.  The  sender,  with  whom 
the  contract  was  made,  was  not  damaged.  The  latter 
nevertheless,  was  the  person  by  whom  the  action  ought 
to  have  been  brought,  {h) 

A.,  the  consignor  or  sender,  delivers  goods  to  X.,  a 

{e)  Ibid.,  487,  488  ;  per  Curiam. 

(/)  Gerhard  v.  Bates,  2  E.  &  B.  488  ;  judgment  of  Campbell  C.  J.  See 
Williams  v.  Carwardine,  4  B.  &  Ad.  621  ;  Tarner  v.  Walker,  L.  R.  2,  Q.  B. 
301  ;  36  L.  J.  112,  Q.  B.  (Ex.  Ch.)  ;  L.  R.  i,  Q.  B.  641  ;  35  L.  J.  179,  Q.  B. 

(g)  Playford  v.  United  Kingdom  Telegraph  Co.,  L.  R.  4,  Q.  B.  706.  This 
case  was  decided  before  the  telegraphs  were  transferred  to  the  Post-office. 
As  to  difficulty  in  bringing  actions  against  the  Post-office,  see  Chapter   XXVI. 

[h)  See  for  further  illustrations  of  rule,  Pigott  v.  Thompson,  3  B.  &  P.  147  ; 
M'Contray  V.  Thomson,  Irish  Rep.,  i  Com.  Law,  226. 


ACTIONS     ON    CONTRACT.  103 

carrier,  to  be  carried  to  B.,  the  consignee,  or  person  to 
whom  the  goods  are  sent.  The  goods  are  not  delivered. 
Is  A.,  the  consignor,  or  B.,  the  consignee,  the  person  to 
sueX.? 

The  general  answer  is  that  the  contract  for  carriage  is 
sometimes  to  be  considered  an  agreement  between 
the  consignor  A.  and  the  carrier  X.,  and  sometimes  [87] 
to  be  considered  an  agreement  between  the  con- 
signee B.  and  the  carrier  X.,  but  that  most  usually  it  will 
be  found  to  be  an  agreement  between  the  consignee  and 
the  carrier,  and  that  therefore  B.,  and  not  A.,  is  usually 
the  right  person  to  sue. 

In  determining  whether  the  consignor  or  the  con- 
signee of  the  goods  is  the  proper  plaintiff,  the  following 
principles  must  be  borne  in  mind  : 

istly.  The  contract  for  carriage  is,  in.  the  absence  ot 
any  express  agreement,  presumed  to  be  between  the 
carrier  and  the  person  at  whose  risk  the  goods  are  carried, 
i.  e.,  the  person  whose  goods  they  are  and  who  would 
suffer  if  the  goods  were  lost. 

This  person  is  ordinarily  the  consignee,  for  when,  as  is 
often  the  case,  he  is  the  purchaser  of  the  goods,  delivery 
of  the  goods  by  the  vendor  to  the  carrier  operates  as 
delivery  to  the  purchaser  or  the  consignee,  [i]  It  is 
for  him  the  goods  are  carried,  and  the  consignor,  in  em- 
ploying the  carrier,  is  considered  as  agent  of  the  con- 
signee for  that  purpose  ;  since  it  appears  "  to  be  a  propo- 
sition as  well  settled  as  any  in  law,  that  if  a  tradesman 
order  goods  to  be  sent  by  a  carrier,  though  he  does  not 
name  any  particular  carrier,  the  moment  the  goods  are 
delivered  to  the  carrier,  it  operates  as  a  delivery  to  the 
purchaser;  the  whole  property  immediately  vests  in  him; 
he  alone  can  bring  an  action  for  any  injury  done  to  the 
goods,  and  if  any  accident  happens  to  the  goods,  it  is  at 
his  risk."  {k) 


(1)  I  Stiwyn,  N.  P.,  13th  ed.,  359. 

(k)  Dutton  V.  Solomonson.  3  13.  &  P.  584,  judgment  of  Ai.Vani.kv,  C.  J.  j 
Dawes  V.  Peck,  8  T.  R.  330  ;  3  Esp.  12.  See  Wait  v.  Hakcr,  2,  Kx.  i  ;  17  L. 
J    ",07,  Kx. 


104  PARTIES     TO    ACTIONS. 

WluMi,  thcrcrtirc,  o;oods  arc  sent  to  a  person  who  has 
jHiichascd  fhcni  ;  or  arc  shipped  under  a  bill  of  lading 
by  a  person's  order,  and  on  his  account,  (/)  the  consignee, 
as  being  the  person  at  whose  risk  the  goods  are,  is 
[88]  considered  the  person  with  whom  the  contract  is 
made.  He  is  liable  to  pay  for  the  carriage,  (;«)  and 
is  the  proper  person  to  sue  the  carrier  for  a  breach  of 
contract. 

2ndly.  Since  the  reason  of  the  consignee  being  the 
person  to  sue  is,  that  the  goods  are  his  and  at  his  risk,  and 
therefore  the  agreement  for  carriage  is  (in  the  absence  of 
Any  special  C(3ntract)  held  to  be  made  with  him,  it  follows 
that  if  the  goods  are  not  at  the  risk  of  the  consignee  the 
consignor  is  the  proper  person  to  sue. 

Where,  that  is  to  say,  from  any  cause  the  property  in 
the  goods  has  not  passed  to  the  consignee,  and  they 
remain  at  the  risk  of  the  consignor  (as  where  goods  are 
forwarded  for  sale  on  approval,  {n)  or  where  the  contract 
of  sale  is  within  the  Statute  of  Frauds,  and  there  is  no 
evidence  of  a  contract  or  of  a  delivery  and  acceptance 
sufficient  to  satisfy  the  statute,  {o))  then  the  contract  is 
considered  to  be  with  the  consignor,  and  he,  therefore,  is 
the  person  to  sue  for  its  breach. 

"If  goods,"  it  has  been  said,  "are  delivered  to  a 
carrier  to  be  forwarded  to  their  place  of  destination, 
that  may  or  may  not  be  a  contract  with  the  consignee. 
In  the  case  of  vendor  or  vendee,  the  consignor  does  not 

(/)   Brown  v.  Hodgson,  2  Camp.  36. 

(;«)  Dommett  v.  Beckford,  5  B.  &  Ad.  522  ;  I  Selw3'n,  N.  P.,  13th  ed.,  361. 
It  is  said  that  the  mode  in  which  the  carrier  was  to  be  paid,  sc,  by  the  con- 
signor, makes  no  difference  ;  for  this,  King  v.  Meredith,  2  Camp.  639,  is  cited. 
This,  however,  is  not  the  case  of  an  action  against  the  carrier.  It  does  not  (it 
is  submitted)  prove  more  than  that  the  goods  might  be  at  the  consignee's  risk, 
even  though  the  consignor  were  10  pay  for  the  carriage.  It  does  not  establish 
that  the  consignor  might  not,  on  account  of  the  payment,  have  had  a  right  of 
action  against  the  carrier  for  non-delivery,  i.e.,  that  the  payment  might  not  be 
considered  proof  of  a  special  contract  between  ihe  consignor  and  the  carrier. 
Compare  Davis  v.  James,  5  Burr.  2680. 

(«)  Swain  v.  Shepherd,  i  AI.  &  Rob.  223  ;  Sargent  v.  Morris,  3  B.  &  Aid. 
277- 

{0)  Coates  V.  Chaplin,  3  Q.  B.  483.  Compare  Freeman  v.  Birch,  3  Q.  B, 
ic"?     Fragaro  v.  Long,  4  B.  &  C.  219.     Cliitty,  Contracts,  7th  ed.,  450. 


ACTIONS     ON    CONTRACT.  105 

act  as  the  agent  of  the  consignee,  but  on  his  own  behalf, 
and  up  to  the  moment  of  the  delivery  of  the  goods  to  the 
carrier   the    property   is  in   him.      Upon  the    de- 
livery the  goods  become  the  property  of  the  ven-      [89] 
dee.    .    .    .    Therefore  if  the  goods  are  damaged  or 
lost  before  the  carrier  pays  the  consignor,"  [_sc.,  the  value 
of  the  goods]  "  he  should  ascertain  whether  the  property 
is  in   him  ;  "  \i.  e.,  the  consignor]   "  otherwise   he  would 
pay  in  his  own  wrong,  if  it  should  turn  out  that  the  prop- 
erty was  in  the  vendee,  for  in  that  case  the  contract  is  with 
him  alone.    ...    I  take  this  ground,  that  unless  it  can 
be  shown  that "  [the  consignor]  "  was  the  owner  of  the 
goods,  the  contract  was  with  "  [the   consignee]  "alone; 
therefore  he  alone  is  entitled  to  sue."  (/) 

3rdly.  Though,  if  there  be  no  express  agreement,  the 
person  at  whose  risk  the  goods  are  (generally,  though 
not  always,  the  consignee)  is  the  proper  person  to  sue 
the  carrier  for  non-delivery,  yet,  if  there  be  an  express 
agreement  between  the  consignor  and  the  carrier,  e.  g., 
if  the  consignor  expressly  make  himself  liable  to  pay  for 
the  carriage,  then  the  consignor  may  maintain  an  action 
against  the  carrier  for  non-delivery.  And  the  case  is 
substantially  the  same  where  the  carrier  has  so  dealt  with 
the  consignor  as  to  be  estopped  from  denying  that  the 
goods  delivered  to  him  are  the  consignor's  goods,  (r) 

The  law,  therefore,  on  this  subject  may  thus  be 
summed  up  : 

Where  there  is  no  express  agreement,  the  person  at 
wliose  risk  goods  arc  carried  is  entitled  to  sue  the  carrier 
for  their  non-delivery.  This  person  is  generally  the  con- 
signee, but  may  be  the  consignor. 

The  action  may  be  brought  in  the  name  of  the  con- 
signor if  there  is  an  express  agreement  between  him  and 
the  carrier  as  to  the  employment  of  the  carrier  on  his 
account,  (t) 

{/>)  Per  Watso.V,  H.,  Coombs  v.  Bristol  and  Exeter  Rail.  Co..  3   H.  *  N.  6, 

(r)  Compaie  Lush,  I'raciice,  3rd  ed.,  10,  11. 

(/)  Davis  V.  Jones,  5  liurr.  2680  ;  Moore  v.  Wilson,  I  T,  R.  659  ;  Sargent 
r.  Morris,  3  H.  &  Aid.  277  ;  Duniop  v.  Lambert,  6  CL  &  Fin.  600  ;  liuUen, 
Pleadings,  3rd  ed.,  122. 


106  PARTIES     TO    ACTIONS. 

[90]  Actions  by  consignor  or  consignee  furnish  no 

ex'ccption  to  the  general  rule;  for  where  no  express 
agreement  exists  the  contract  for  carriage  is  a  contract 
between  the  carrier  and  the  person  at  whose  risk  the  goods 
are  carried,  who,  therefore,  must  sue  for  any  breach  of 
contract.  When,  again,  there  exists  an  express  agreement 
with  the  consignor,  he,  as  being  the  person  with  whom 
the  contract  is  made,  must  be  the  plaintiff  in  an  action 
against  the  carrier,  (?/) 

The  owner  of  the  goods  may  sometimes,  independently 
of  any  contract  with  the  carrier,  have  a  right  to  bring  an 
action  of  tort  against  the  latter  for  injury  or  damage  done 
to  his  goods,  {x)  Hence  (it  is  gonceived)  cases  may  arise 
in  which  the  consignor  may  sue  for  the  breach  of  an 
express  contract,  and  the  consignee,  as  owner,  may  also 
have  a  right  to  sue  for  damage  to  his  property,  (j/) 

Exception  i  —  Actions  by  a  person  appointed  by  statute  to 
sue  on  behalf  of  others. 

Banking  companies  within  7  Geo.  4,  c.  46,  s.  4,  as  well 
as  other  bodies,  are  empowered,  and  therefore  compelled 
by  statute,  to  sue  in  the  name  of  one  of  their  officers,  e,  g., 
secretary,  manager,  clerk,  &c.  Such  a  nominal  plaintiff 
brings  actions  on  contracts  to  which  he  is  not  (unless  he 
happens  to  be  a  shareholder  in  the  company)  in  any  sense 
a  party,  {z) 

Exception  2. — Actions  which  can  be  brought  either  by  a 
principal  or  an  agent. 

In  certain  cases  [a)  either  the  principal,  with  whom 
the  contract  is  really  made,  or  the  agent  through  whom 

{tt)  Where  the  consignor  acts  as  agent  of  the  consignee,  but  contracts  in  his 
own  name,  it  would  appear  that  either  the  consignor  or  the  consignee  may  sue. 
Rule  17,  Exceptions  4  and  5. 

(jt)  Marshall  v.  York  and  Newcastle  Rail.  Co.,  11  C.  B.  665  ;  21   L.  J.  34,  C 
P.;  Martin  v.  Great  Indian  Rail.  Co.,  L.  R.  3,  Ex.  9;  37  L.  J.  27,  Ex. 

{y)  Ibid.     As  to  actions  for  torts  founded  on  contract,  see  Chap.  XIX. 

(z)  Rule  20,  Exception  t. 

ia)  Rule  17,  Exceptions  4-7. 


ACTIONS     ON    CONTRACT.  lo; 

a  contract  is  made,  can  sue  for  its  breach  ;  i.  e.,  a      [91] 
person  can  sue  from  whom  the  consideration  does 
not  move. 


Exception  3. — Some  actions  for  money  had  and  received. 

The  action  for  money  received  lies  wherever  the  de- 
fendant has  received  money  which  in  justice  and  equity 
belongs  to  the  plaintiff,  under  circumstances  which  render 
the  receipt  of  it  a  receipt  by  the  defendant  to  the  use  of 
the  plaintiff  {b) 

The  reason  why  the  receipt  of  the  money  is  a  receipt 
by  the  defendant  for  the  use  of  the  plaintiff,  may  be  the 
existence  of  circumstances  altogether  independent  of  a 
contract  between  the  parties,  or  it  may  be  the  existence 
of  an  agreement  of  some  sort  on  the  part  of  the  defendant 
to  hold  certain  money  for  the  use  of  the  plaintiff.  In  the 
first  case,  the  rule  that  a  consideration  must  move  from 
the  plaintiff  is  inapplicable,  since  no  contract  exists.  In 
the  second  case,  the  rule  is  hard  to  apply,  since  there  is 
often  a  difficulty,  even  though  a  contract  exists,  in  fixing 
upon  any  real  consideration  in  the  ordinary  sense  of  that 
term. 

"  It  is  not  a  rule  of  universal  application,  that  it  is 
necessary  to  show  privity  in  order  to  maintain  an  action 
for  money  had  and  received.  There  are  many  cases  in 
which  the  action  will  lie,  although  there  is  no  privity  of 
contract.  For  instance,  where  money  has  got  into  the 
hands  of  a  party  by  means  of  some  tortious  act,  this  ac- 
tion will  lie  at  the  instance  of  the  real  owner  of  the 
money."  {c)  Where  the  plaintiff's  goods  are  taken  and 
sold  by  the  defendant,  {d)  where  money  has  been  obtained 
from  the  plaintiff  by  fraud,  {e)  by  duress  of  his  person  or 

(b)  Moses   V.  Macfarlanc,  2  Hnrr.  looo,  mo;  see   unff  ;   Hullcn.    Pleadings, 
3rd  ed.,  44. 

(c)  Collins  V.  Brook,  5  II.  &  N.  706,  jucigmeiit  of  Cromi'TON,  J. 

{(i)  Lithgoe  v.  Vernon,   5    II.  &   N.    180  ;  29    L.  J.  164,  Ex. ;  ^lamblcy  r 
Trott,  T  Cowp.  371. 

(e\   Holt  V.  Ely,  l  E.  &  B.  795  ;  Andrews  v.  Hawlcy,  26  L.  J.  323,  Ex. 


io8  PARTIES     TO    ACTIONS. 

property,  by  oppression,  or  by  fraudulent  use  of 
[92]  Icijal  process,  (/)  in  consideration  of  doing  that 
which  the  person  obtaining  it  was  legally  bound  to 
do  without  payment,  {g)  and  generally  wherever  the  de- 
fendant has  committed  a  tort  which  resulted  in  his  ob- 
taining money  from  the  plaintiff,  an  action  lies  for  money 
received.  (//) 

So,  where  no  tort  has  been  committed,  e.  g.,  where 
mone}'  is  paid  by  one  person  to  another  under  a  mistake 
of  fact,  {i)  (as  when  one  person  gives  another  change  for 
a  bank-note,  both  parties  believing  it  to  be  genuine,  and 
it  turns  out  to  be  forged,  {k) )  or  money  has  been  paid  for 
a  consideration  which  has  utterly  failed,  (/)  and  in  other 
instances  of  the  same  sort,  the  action  for  money  had  and 
received  often  lies. 

In  these  and  similar  cases  it  is  clear  that  the  basis  oi 
the  action  is  in  no  sense  the  existence  of  a  contract,  that 
the  existence,  therefore,  of  "  privity  "  between  the  plain- 
tiff and  defendant  is  not  necessary,  {m)  and  that  the 
ordinary  rules  as  to  the  person  to  sue  for  a  breach  ol 
contract  do  not  apply. 

The  ultimate  ground  on  which  the  plaintiff  rests  his 
claim  in  the  action  for  money  received  is  that  the  defend- 
ant holds  money  of  the  plaintiff's  which  justice  requires 
that  the  defendant  should  pay  over  to  him.  But  though 
the  reason  why  justice  requires  that  the  money  should  be 
paid  to  the  plaintiff  may  be  the  existence  of  facts  which 
have  no  connection  with  a  contract,  the  reason  more 
generally  is  that  the  defendant  has  received  money 
[93]  which  he  has  expressly  or  impliedly  (w)  {i.  e.,  by  his 
acts)  undertaken  to  hold  for  the  plaintiff  and  pay 

(/)  Medina  v.  Groves,  10  Q.  Ti.  152  ;  Cadaval  v.  Collins,  4    A.  &  E.  858. 

{g)  Parker  v.  Great  Western  Rail.  Co.,  7  M.  &  G.  253. 

{h)  See  further,  for  exam]5les,  Leake,  Contracts,  52-57;  Marriott  v.  Hamp- 
ton, 2  Smith,  L.  C,  6th  ed.,  376,  notes. 

(/)  Kelly  V.  Solari,  9  M.  &  W.  54. 

(,k)  Woodland  v.  Fear,  26  L.  J.  204,  Q.  B.  ;  7  E.  &  B.  522,  judgment  o 
Campbell,  C.  J. 

(/)  Ibid.     See  Leake,  Contracts,  61,  62. 

(m)  Collins  v.  Brook,  5  H.  &  E.  708,  judgment  of  Byles,  J. 

(«)  Williams  v.  Everett,  14  East,  5S2. 


ACTIO  XS     ON    CONTRACT.  109 

over  to  him.  Hence  it  is  often  true  that  "  in  order  to 
maintain  this  action,  there  must  be  a  privity  {0)  between 
the  plaintiff  and  the  defendant."  (/) 

The  cases  which,  though  depending  upon  the  existence 
of  a  contract,  present  some  peculiarity,  are  those  in  which 
B.  pays  money  to  X.  under  directions  to  pay  it  over  to 
A. 

The  question  then  arises  (supposing  X.  not  to  pay  over 
the.  money),  is  the  action  against  him  to  be  brought  by  A. 
or  by  B.  ?  To  this  the  answer  is,  that  X.  is  liable  to  A., 
if  he  has  expressly  or  by  his  acts  undertaken  with  A.  to 
hold  the  money  as  the  money  of  A.,  and  must  in  that  case 
be  sued  by  A.  If  he  has  not  so  undertaken,  he  is  liable 
not  to  A.,  but  to  B.,  and  must  be  sued  by  B. 

"  If  a  debtor  by  an  order  given  to  his  agent  appro- 
priates a  fund  in  his  hands  to  the  discharge  of  the  debt, 
and  the  agent  pledges  himself  to  the  creditor  so  to  appro- 
priate the  fund,  the  order  is  irrevocable,  and  the  creditor 

may  sue  such  agent But  the  creditor  can 

not  sue  the  agent  unless  the  latter  has  assented  to  the 
appropriation  so  as  to  pledge  himself  to  the  creditor  ;  for 
otherwise  the  debtor  may  countermand  the  order,  and 
there  is  no  privity  between  the  creditor  and  the  agent."  {q) 

"  It  does  not  appear,"  it  has  been  said,  in  a  case 
answering  to  that  supposed,  "  that  [B.]  might  not  have 
countermanded  the  payment  to  the  plaintiff  |  A.]  at  any 
time  before  he  actuallv  received  the  money.  Nor  is  it 
shown  that  the  plaintiff  has  been  induced  to  do  any  act 
on  the  faith  of  receiving  payment  from  the  defendant.  If 
it  had  been  proved  that  the  defendant  [X.]  had,  as  it 
were,  attorned  to  the  plaintiff,  and  agreed  to  hold  [94] 
the  money  for  his  use,  and  not  subject  to  the 
direction  of  [B.],  the  case  would  have  been  different."  is) 

{o)    I  Selwyn,  N.  ?.,  13th  cr].,  119. 

(/>)  Lilly  V.  Hays,  5  A.  &  E.  548  ;  Noble  v.  National  Discount  Co  .  20  L 
J.  210,  Ex. ;  5  H.  &  N.  225  ;  Liversidge  v.  Broadbeiit,  4  II.  &  N.  603  ;  28  L. 
J.  332,  Ex. 

(q)  Forth  v.  Stanton,  i  Wms.  Saund.  210/'.  note  (a).  Compare  Collins  t. 
Brook,  5  II.  &  N.  705,  judgment  of  Williams,  J. 

{:)  Howell  v.  Batt,  5  \\.  &  A<1.  506,  judj^mcnt  of  Parke,  J. 


no  PARTI  US     TO    ACTIONS. 

The  general  principle  therefore  is,  that  where  B,  pays 
money  to  X.  for  A.,  X.  can  not  be  sued  by  A.  until  there 
has  been  some  undertaking  on  his  part,  either  by  word  or 
act,  to  hold  the  money  as  the  money  of  A.,  and  that  as 
long  as  B.  can  withdraw  the  order  to  pay  to  A.  {i.  e.,  as 
long  as  the  money  continues  B.'s),  X.  can  not  be  sued  by 
A.,  but  must  be  sued,  if  at  all,  by  B. 

It  is  difficult  to  apply  to  this  case  the  rule  that  the 
person  to  sue  must  be  the  person  from  whom  the  con- 
sideration moves  ;  for,  though  it  is  clear  that  X.'s  under- 
taking or  promise  to  hold  for  A,  is  the  ground  of  his 
liability  to  A.  (when  he  is  so  liable  ),  it  is  not  equally 
clear  what  is  the  consideration  from  A.'s  side  for  this 
undertaking. 

The  consideration  is  the  consent  of  A.  that  X.  should 
receive  the  money  for  him.  The  creditor  A.  suffers  X.  to 
be  his  agent  to  receive  the  money  due  to  him  from  B. 
"  There  is,"  [therefore],  "  a  consideration  moving  through 
the  instrumentality  of  the  original  debtor  [B.]  to  the 
defendant  [X.]  as  agent  for  tlie  plaintiff  [A.]  "  (/).  "  The 
facts  show  that  the  defendant  [X.]  was  the  agent  of  the 
plaintiff  [A.].  That  agency  supplies  the  consideration. 
To  constitute  an  agency  there  must  have  been  an  agree- 
ment, either  express  or  to  be  inferred  from  what  has  been 
said  on  one  side  and  adopted  on  the  other."  {it) 

The  expression  consideration  is,  in  these  transactions, 
used  in  a  strained  sense.  The  contract  may  possibly  be 
considered  one  which  is  valid  without  the  existence  of 
an}'  real  consideration  moving  from  the  plaintiff  to  the 
defendant.  At  any  rate  in  an  action  for  money  had  and 
received  a  direct  consideration  moving  from  the 
[95]  plaintiff  is  seldom  shown.  (;ir)  The  matter  to  be  con- 
sidered, in  order  to  determine  whether  the  sendei 
of  the  money,  B.,  or  the  intended  recipient.  A.,  ought  to 
sue  the  defendant,  X.,  is.  has  or  has  not  X.  either  expressly 
or  by  his  acts  agreed  with  A.  to  hold  the  money  as  the 

it)  Lilly  V.  Hays,  5  A.  &  E.  550,  per  Pattison,  J. 

(m)  Ibid.,  550,  551,  per  Coi.ERlDGP,  J. 

(x)  Lilly  V.  Hays,  5  A.  &  E.  550,  per  Pattison,  J. 


ACTIONS     ON    CONTRACT.  in 

money  of  A. ;  or  in  other  words,  whether  the  money  has 
ceased  to  be  the  money  of  the  original  owner  B.  As  long 
as  B.  can  countermand  the  order  to  pay  to  A.  the  money  is 
tiie  money  of  B.  But  when  X.  has  pledged  himself  to  X. 
to  hold  the  money  as  money  of  A.,  then  B.  can  not  coun- 
termand the  order,  and  the  money  is  the  money  of  A.  held 
by  X.  for  his  use.  {y) 

The  inquiry  whether  X.  has  or  has  not  undertaken  to 
hold  -the  money  as  the  agent  of  A.,  for  whom  it  is  sent, 
often  resolves  itself  into  a  nice  question  of  fact. 

B.,  residing  abroad,  remitted  bills  to  X.  &  Co.  (the 
defendants),  his  bankers  in  London,  with  directions  to 
pay  the  amount  of  the  bills  m  certain  proportions  to  A. 
(the  plaintiff)  and  other  creditors  of  B.  X.  &  Co.  refused 
to  act  upon  B.'s  instructions,  and  though  tbey  received 
the  amount  due  on  the  bills,  did  not  pay  A.  It  was  held 
that  no  action  could  be  brought  by  A.  against  X.  &  Co., 
since  the  defendants  never  assented  to  hold  the  money 
for  the  use  of  A.,  but  held  it  to  the  use  of  B.  and  subject 
to  his  directions,  {z) 

"  It  will  be  observed,"  it  is  laid  down  in  the  judgment 
in  this  case,  "  that  there  is  no  assent  on  the  part  of  the 
defendants  to  hold  this  money  for  the  purposes  mentioned 
in  the  letter  [from  B.],  but  on  the  contrary,  an  express 
refusal  to  the  creditor  [A.]  so  to  do.  If,  in  order  to  con- 
stitute a  privity  between  the  plaintiff  and  defendants, 
as  to  the  subject  of  this  demand,  an  assent  express  or 
implied  be  necessary,  the  assent  can  in  this  case  be  only 
an  implied  one,  and  that,  too,  implied  against  the 
express  dissent  of  the  parties  to  be  charged.  By  [96] 
the  act  of  receiving  the  bill,  the  defendants  agree 
to  hold  it  till  paid,  and  its  contents  when  paid,  for  the  use 
of  the  remitter.  It  is  [open]  to  the  remitter  to  give  and 
countermand  his  own  directions  respecting  the  bill  as 
often  as  he  pleases,  and  the  ])ers()ns  to  whom  the  bill  is 
remitted  may  still  hold  the  bill  till  received,  and  it 
amount  when  received  for  the  use  of  the  remitter  himself; 

(  v)  See  Hoflgson  v.  Anderson,  3  IJ.  vl-  C  S42. 
(2)  Williams  v.  EveieU,  14  East,  582. 


112  PARTIES     TO     ACTIONS. 

until,  b}'^  some  eno^ac^cmcnt  entered  into  by  themselves 
with  the  person  who  is  the  object  of  the  remittance,  tney 
have  precluded  themselves  from  so  doing,  and  have 
appropriated  the  remittance  to  the  use  of  such  person. 
After  such  a  circumstance  they  can  not  retract  the  con- 
sent they  may  have  once  given,  but  are  bound  to  hold  it 
for  the  use  of  the  a]')pointee.  If  it  be  money  had  and  re- 
ceived for  the  use  of  the  plaintiff  under  the  'Orders  which 
accompanied  the  remittance,  it  occurs  as  fit  to  be  asked, 
when  did  it  become  so?  It  could  not  be  before  the 
mone}'  was  received  on  the  bill  becoming  due  ;  and  at 
that  instant  suppose  the  defendants  had  been  robbed  of 
the  cash  or  notes  in  which  the  bill  in  question  had  been 
paid,  or  they  had  been  burnt,  or  lost  by  accident,  who 
would  have  borne  the  loss  thus  occasioned  ?  Surely  the 
remitter  [B.],  and  not  the  plaintiff  and  his  other  creditors, 
in  whose  favor  he  had  directed  the  application  of  the 
money  according  to  their  several  proportions  to  be  made. 
This  appears  to  us  to  decide  the  question  ;  for  in  all 
cases  of  specific  property  lost  in  the  hands  cxf  an  agent, 
where  the  agent  is  not  himself  responsible  for  the  cause 
of  the  loss,  the  liability  to  bear  the  loss  is  the  test  and 
consequence  of  being  the  proprietor,  as  the  principal  of 
such  agent."  {a) 

B.,  the  acceptor  of  a  bill  of  exchange  which  had  been 
dishonored,  transmitted  to  X.  another  bill,  the  proceeds 
of  which  were  to  be  employed  in  paying  the  dishonored 
bill.     X.    undertook,  in    a  letter    to  B,  that  the  money 

should  be  carried  to  B.'s  account.  It  was  held  {b) 
[97J      that  A.,  the  holder  of  the  dishonored  biH,  could  not 

bring  an  action  against  X.,  for  "  where  a  party  to 
whom  a  bill  is  remitted  repudiates  the  trust  with  which 
the  bill  is  clothed,  that  may  give  to  the  person  remitting 
the  bill  a  right  to  bring  trover  for  it ;  but  it  does  not  give 
any  right  of  action  to  the  person  on  whose  account  the 
bill  is  directed  to  be  applied,  and  unless  some  agreement 
had  taken  place  between  the  defendant  and  the  plaintiff^ 

(a)  Williams  v.  Everett,  14  East,  596,  597,  per  Curiam. 
\l>)  Yates  V.  Bell.  3  B.  &  AM.  643. 


ACTIONS    ON    CONTRACT.  113 

the  former  could  only  be  considered  as  holding-  the  bill 
for  the  use  of  [the  remitter]."  {c) 

B.  sent  a  bill  to  X.  to  be  paid  to  A.  in  payment  of  a 
debt  due  from  B.  to  A.  X.  got  the  bill  accepted,  and 
wrote  to  A.,  stating  that  he  had  a  commission  from  B.  to 
pay  A.  some  money,  and  asking  how  it  should  be  deliv- 
ered. While  the  bill  remained  in  X.'s  hands,  he  received 
directions  from  B.  not  to  pay  A.  until  an  investigation  of 
accounts  should  have  taken  place.  This  investigation  did 
not  take  place,  and  X.  retained  the  bill,  and  did  not  pay  A. 
It  was  held  that  A.  could  not  sue  X.  The  action  was 
in  form  an  action  of  trover,  but  the  principle  on  which  it 
was  decided  applies  to  an  action  for  money  received,  {d) 

"  The  only  question  is,  whether  there  is  anything  to 
differ  the  case  from  Williams  v.  Everett  in  what  has  been 
done  between  the  party  to  whom,  and  the  party  for 
whose  use,  the  bill  was  remitted.  The  principle  on  which 
this  case  was  put  was,  as  stated  ty  Lord  Ellenborough, 
(e)  that  the  remittees  '  may  hold  the  bill  till  received,  and 
its  amount  when  received,  for  the  use  of  the  remitter 
himself,  until,  by  some  engagement  entered  into  by  them- 
selves with  the  person  who  is  the  object  of  the  remittance, 
they  have  precluded  themselves  from  so  doing,  and  have 
appropriated  the  remittance  to  the  use  of  such  person.' 
But  instead  of  that,  what  is  done  here?  There 
is,  certainly,  the  letter  of  the  defendant  agreeing  to  [98] 
hold  for  the  plaintiff,  but  there  is  no  assent  of  the 
plaintiff  to  receive  it  as  payment;  it  is  only  an  inchoate 
offer,  on  the  part  of  the  agent,  to  hold  the  bill  for  the 
remittee,  if  he  assents.  I  find  no  such  appropriation  here 
as  is  referred  to  by  Lord  Ellenborough."  (/)  It  follows, 
therefore,  that  where  X.'s  consent  to  hold  money  of  B. 
for  the  use  of  A.  is  only  conditional,  no  action  can  be 
brought  by  A.  until  the  condition  is  fulfilled,  {g) 

{c)  Yates  V.  Bell,  3  B.  &  Aid.  645,  jud{;ment  of  Abbott,  C.  J. 
{d)  Brind  v.  Hampshire,  i  M.  &  W.  365. 
(e)  14  East.  596. 

(/)  Brind  v.  Hampshire,  I  M.  &  W.  373,  374,  judgment  of  Boi.LAND,  B. 
{g)  Malcolm  v.  Scott,  5  Exch.  601  ;  Hudson  v.  Billon,  6  E.  &   B.  565;  26 
L.  J.  27,  Q.  I',, 
b 


114  PARTIES     TO    ACTIONS. 

The  assent,  on  the  other  hand,  of  X.  to  hold  money 
of  B.  for  the  use  of  A.,  gives  A.  a  right  of  action.  B., 
a  debtor  of  A.,  transmitted  to  X.  money,  which  X.  ad- 
mitted having  received,  and  on  being  informed  that  it 
was  meant  to  be  paid  to  A.,  said  that  he  would  pay  it  to 
A.,  and  this  statement  was  repeated  to  A.  by  X.'s  author- 
ity. It  was  held  that  A.  could  sue  X.  for  money  had  and 
received,  on  the  ground  that  X.  had  stated  in  effect  that 
he  held  the  money  to  A.'s  use,  and  had  allowed  him  to  be 
told  so,  (//)  and  that  the  agency  constituted  between  A. 
and  X.  was  a  sufficient  consideration  for  the  agreement 
on  X.'s  part  to  hold  the  money  of  A.  The  action  could 
not,  in  this  case,  have  been  maintained  unless  the  de- 
fendants had  communicated  to  the  plaintiff  that  they  held 
the  money  for  his  use.  Thus,  where  B.  transmitted  to  X. 
&  Co.  money  to  be  paid  by  them  to  A.,  and  they  prom- 
ised B.  to  pay  A.,  but  had  no  communication  with  A.,  it 
was  held  that  A.  could  not  sue  X.  &  Co.  (?) 

The  question,  who  is  the  right  plaintiff  in  an  action 
for  money  received,  is  often  complicated  by  the  rules 
forbidding    the    assignment   of    the   right     to   bring    an 

action.  (/) 
[99]  Suppose  that    B.  owes   A.   ;£'ioo,   and   that   X. 

owes  B.  i^ioo.     In  this  case  B.,  instead  of  sending 
money  to  A.,  perhaps  directs  X.  to  pay  the  ;^ioo  to  A. 

If  X.  does  not  pay  A.,  the  question  whether  A.  or  B. 
have  a  right  of  action  against  X.  depends  not  only  upon 
the  answer  to  the  question  whether  X.  has  assented  to 
hold  the  ^100  for  the  use  of  A.,  but  also  upon  the  reply  to 
the  further  inquiry  whether  X.'s  debt  to  B.  has  been  ex- 
tinguished. For  otherwise  there  is  no  consideration  for 
X.'s  undertaking  to  incur  a  debt  to  A.,  and  it  is  clear 
that  B.'s  claim  against  X.  can  not  be  directly  transferred 
to  A.  In  other  words,  by  an  agreement  between  the 
three  parties  B.,  X.,  and  A.,  by  which  B.  gives  up   his 

(h)  Lilly  V.  Hays,  5  A.  &  E.  548. 

(t)  Moore  v.  Bushell,  27  L.  J.  3,  Ex. 

(j)  See  Rule  6,  and  Rule  15,  Exception  3.  Compare  Lampleigh  v.  Braith- 
wait,  I  Smith,  L.  C,  6th  ed.,  143,  notes  •,  Fleet  v.  Perrins,  L.  R.  4,  Q.  B.  500 
(Ex.  Ch.). 


ACTIONS     ON    CONTRACT.  115 

claim  against  X.,  and  X.  incurs  a  new  liability  to  A.,  a 
contract  may  be  formed  between  X.  and  A.  But  B.  can 
not  transfer  to  A.  his  right  to  sue  X.,  and  therefore  A.'s 
right  of  action  depends  on  the  existence  of  this  contract. 
X.  (the  defendant)  was  indebted  to  B.,  and  B.  was  indebted 
to  A.  B.  by  a  document  in  writing  agreed  to  authorize 
X.  to  pay  A.  the  amount  of  B.'s  debt  to  A.  At  the  foot 
of  the  document  X.  wrote  the  word  "  acknowledged." 
It  was  held  that  A.  could  not  maintain  an  action  against 
X.  ik) 

"  There  are  two  legal  principles  which  as  far  as  I  know 
have  never  been  departed  from.  One  is  that  at  Common 
Law  a  debt  can  not  be  assigned  so  as  to  give  the  assignee 
a  right  to  sue  for  it  in  his  own  name,  except  in  the  case 
of  a  negotiable  instrument;  (/)  and  that  being  the  law  it 
is  perfectly  clear  that  [B.]  could  not  assign  to  the  plain- 
tiff [A.]  the  debt  due  from  the  defendant  [X.]  to  him.  .  . 
The  other  principle  which  would  be  infringed  by  allowing 
this  action  to  be  maintained,  is  the  rule  of  law  that  a  bare 
promise  can  not  be  the  foundation  of  an  action.  Ex 
nudo  pacto  non  oritur  actio.  Applying  these 
principles  to  the  present  case,  I  am  clearly  of  [100] 
opinion  that  the  action  can  not  be  maintained. 
.  .  .  "  There  was  nothing  in  the  nature  of  a  considera- 
tion moving  from  the  plaintiff  to  the  defendant ;  but  a 
mere  promise  by  the  defendant  to  pay  another  man's  debt. 
No  doubt  there  are  cases  in  which  the  courts  have  been 
desirous  to  give  their  sanction  to  arrangements  of  this 
kind.  Amongst  others,  Lilh'  v.  Hays  (»?)  was  cited ;  but 
in  that  case  the  defendant  had  a  sum  of  money  in  his 
hands,  which  he  admitted  that  he  held  for  the  plaintiff's 
use,  and  promised  to  pay  it  to  him  ;  so  that  he  was  in 
the  situation  of  an  agent  for  the  plaintiff,  and  on  that 
ground  it  was  held  the  plaintiff  might  recover  it  as  money 
received  to  his  use.  The  same  observation  a])plies  to  the 
case  of  Walker  v.  Rostron.  («)      There  the  agent  for  the 

(k)  Liversic'.ge  v.  'Jroaf.bcnt,  4  II.  &  N.,  603  ;  28  L.  J.  332,  Ex. 

(  /  )  Rule  1 5,  Kxcepiion  2. 

(«/)  5  A.  &  I-:.  548. 

(«)  9  M.  &  W.  411  ;   II   I,.  J.  173,  Ex. 


ii6  PAR  TIES     TO    ACTIONS. 

purchaser  of  o-^xhIs  inulcrtook,  by  an  agreement  which 
the  vendor  and  purchaser  were  also  parties,  to  pay  bills 
of  exchange,  given  for  the  price  of  the  goods,  out  of 
certain  specified  funds  which  he  expected  to  receive,  and 
that  was  held  to  be  an  appro[)riation  of  the  funds,  irre- 
vocable except  bv  the  consent  of  all  parties.  The  same 
principle  prevails  with  respect  to  bankers.  A  banker  is 
in  the  position  of  a  person  having  in  his  hands  the  money 
of  another  which  he  is  at  any  moment  liable  to  be  called 
upon  to  pav,  and  the  courts  have  grasped  at  that  to  make 
a  contract  between  the  banker,  his  customer,  and  a  third 
party,  for  the  payment  of  money  to  the  latter,  operate  as 
a  transfer  of  the  money,  so  that  an  action  for  money  had 
and  received  can  be  maintained  for  it.  Here  there  is  no 
money  had  and  received  to  the  use  of  the  plaintiff.  In 
Israel  v.  Douglas,  {o)  there  was  a  consideration  to  support 
the  promise.  Here  there  is  nothing  more  than  a  transfer 
of  a  chose  in  action  ;  and  without  violating  the  two  rules 
of  law  to  which  I  have  adverted,   this  action  can  not  be 

maintained."  (/) 
[loi]  B.  was  indebted  to  A.  (the  plaintiff),  and  agreed 

with  X.  &  Co.  (the  defendants),  who  were  indebted 
to  B.,  that  they  should  discount  bills  drawn  by  B.  and 
accepted  b}'-  X.  A.  presented  the  bills  to  X.  &  Co.,  who 
were  bankers.  X.  &  Co.  would  not  immediately  pay  A. 
the  amount  of  the  bills,  but  gave  a  check  to  B.'s  clerk, 
which,  as  well  as  a  further  amount  due  on  the  bills,  they 
promised  to  pay  next  day  on  B.'s  order.  X.  &  Co.  re- 
ceived B.'s  order,  but  afterwards,  on  B.  having  stopped 
payment,  refused  to  pay  A.  It  was  held  that  A.  might  sue 
X,  &  Co.  for  money  received,  on  the  ground  that  from  the 
time  of  receiving  B.'s  order,  the  defendants  held  the 
money  for  the  use  of  the  plaintiff,  {g) 

((?)   r  H.  Black.  239. 

ip)  Liversidge  v.  Broadbent,  4  H.  &  N.  611,  612,  judgment  of  Martin   B» 

Iq)  Noble  v.  National  Disct.  Co.,  5  H.  &  N.  225  ;  29  L.  J.  210,  Ex. 


ACTIONS     ON    CONTRACT.  117 

Rule  i  2.  — The  person  to  sue  for  the  breach  of  a 
contract  by  deed  is  the  person  with  whom  the  con- 
tract is  expressed  by  the  deed  to  be  made ;  i.  e.,  the 
covenantee,  {r) 

A  covenant  is  an  agreement  by  deed,  {s)  In  every 
covenant,  therefore,  there  is  a  covenantor  who  promises, 
and  a  covenantee  {t)  to  whom  the  promise  is  made.  The 
person  to  bring  an  action  for  a  breach  of  the  covenant 
must  be  the  covenantee. 

This  rule  holds  good  because  a  covenant  differs  from 
a  simple  contract  in  the  following  particulars.  A  cove- 
nant is  good  without  the  existence  of  any  consideration 
to  induce  the  covenantor  to  enter  into  the  covenant, 
[102]  {ti)  whilst  a  simple  contract  is  not  valid  if  made 
without  a  consideration.  A  covenant,  again,  is  not 
a  covenant  with  any  person  except  the  covenantee  ;  but  a 
simple  contract,  though  made  on  the  face  of  it  with  one 
person,  and  therefore  giving  him  a  right  to  sue  upon  it, 
may  be  often  treated  as  a  contract  made  with  some  other 
person  whose  name  does  not  appear  on  the  face  of  the 
contract,  but  who,  as  being  the  person  really  contracted 
with,  has  a  right  to  sue  upon  the  contract,  {v) 

X.,  for  example,  covenants  with  A.  to  pay  him  £\o.  A. 
can  sue  X.  if  the  covenant  be  broken,  even  though  there 
were  no  consideration  whatever  to  induce  X.  to  enter 
into  the  covenant.  Suppose,  again,  that  it  were  perfectly 
well  known  that  the  covenant  was  made  with  A.,  simply 
as  agent  for  M.,  and  was  intended  for  M.'s  benefit,  still  if 
it  appeared  on  the  face  of  the  deed  to  be  a  covenant  with 

(r)  Or  the  representative  of  such  person.     See  Rule  lo,  note  {a),  ante. 

(s)  Daviiison,  Precedents,  2nd  ed.,  loi  ;  Touch.  i6o. 

(/)  In  the  case  of  a  bond,  the  person  who  undertakes  the  obligation,  or  the 
promisor,  is  calied  the  obligor,  and  the  person  in  respect  of  whom  the  obliga- 
tion is  undertaken,  or  the  pr<»misee,  is  called  the  obligee. 

(u)  Compare  Rule  II.  This  appears  a  more  accurate  way  of  stating  the 
law  than  the  statement  which  is  often  made,  that  the  law  presumes  a  considera- 
tion in  the  case  of  an  agreement  by  deed.  (See  i  Selwyn,  N.  I'.,  13th  ed. 
'20.) 

(t')  S^e  Chapter  V.  • 


ii8  PARTIES     TO    ACTIONS 

A.,  an  action  for  the  breach  of  it  would  have  to  be  brought 
by  A.,  and  could  not  be  brought  by  M.  (x) 

A  covenantee  may  in  general  sue  on  a  covenant  in  a 
deed  which  he  has  not  executed,  and  by  the  provisions  of 
which  he  therefore  is  not  bound,  {y)  for  the  cases  establish 
that  "  a  covenantee  in  an  ordinary  indenture  who  is  a 
party  to  it  may  sue  the  covenantor  who  executed  it,  al- 
though he  himself  never  did  :  for  he  is  a  part}',  although 
he  did  not  execute,  and  parties  to  an  indenture  may  sue, 
although  strangers  can  not,  and  it  makes  no  difference 
that  the  covenants  of  the  defendant  are  therein  stated  to 
be  in  consideration  of  those  of  the  covenantee."  {z) 

SUBORDINATE    PULE. 

[103]    No  one  can  sue  on  a  covenant  in  an  indenture  {a)  ivJio  is 
not  mentioned  amorig  the  parH.-'s  io  the  indenture. 

The  meaning  of  this  i^ule  is,  that  cvervone  is  a  stranger 
to  a  deed  inter  partes  who  is  not  one  of  the  parties  to  it, 
and  that,  therefore,  no  one  not  a  party  can  sue  upon  any 
contract  contained  in  it. 

Suppose  an  indenture  to  which  the  parties  are  A.  of  the 
one  part  and  X.  of  the  other  part,  and  that  this  inden- 
ture contains  a  covenant  by  X.  with  M.  to  pay  M.  ;!^20, 
M.  can  not  sue  X.,  because  M.  is  not  a  party  to  the  in- 
denture. 

"  The  rule  and  distinction  as  to  deeds  inter  partes  and 
deeds  not  of  that  character  is  very  old,  and  to  be  foi;nc' 
in   the   ancient  legal  authorities ;  but  it  is  impossible  t 

(x)  In  the  case  of  a  simple  contract,  M.,  as   the  principal  really  intereste' 
could  sue.     See  Rule  17,  Exceptions  4,  5. 

{}•)  Leake,  Contracts,  84. 

(s)  Pitman  v.  Woodbury,  3  Exch.  ir.  per  Curiam.  But  conf.  Swatman  v 
Ambler,  8  Exch.  72  ;  How  v.  Greek,  3  H.  &  C.  391  ;  34  L.  J.  4,  Ex. 

{a)  A  deed  is  either  a  deed-poll,  i.  e.,  a  deed  made  by  one  party  only,  and 
addressed  to  the  world  generally,  or  a  deed  inter  partes,  called  otherwise  an  in- 
denture, purporting  to  be  made  between  A^  of  the  one  part  p.nd  X.,  &c.,  of  the 
other  part,     i  Steph.,  Com.,  6th  ed.,  4r)9. 


ACTIONS     ON    CONTRACT.  119 

slate  or  illustrate  it  more  clearly  than  is  done  by  Lord 
Tenterden,  in  his  book  on  Shipping.  .  .  .  He  states  the 
rule  to  be  a  technical  one,  and  thus  illustrates  it: — '  If  a 
charter-party  under  seal  is  expressed  to  be  made  between 
certain  parties  as  between  [W.J  and  [X.J,  owners  of  a  ship 
whereof  [A. J  is  master,  of  the  one  part,  and  [Y.J  and  [Z.J, 
of  the  other 'part,  and  purports  to  contain  covenants  with 
[A.],  nevertheless  [A.J  can  not  bring  an  action  in  his  own 
name  upon  the  covenant,  and  this  even  although  he 
sealed  and  delivered  the  instrument ;  but  if  the  charter- 
party  is  not  expressed  to  be  made  between  parties,  but  is 
written  thus,  "This  charter-party  indentured  witnesseth," 

it  is  otherwise.'     He  adds In  the  case  of  Berkeley 

v.  Hardy  {b)  the  same  rule  is  laid  down,  and  in  the  judg- 
ment it  is  stated  to  be  a  long  established  technical  rule, 
and  one  beheved  to  be  peculiar  to  the  law  of  England. "(<:) 

It  is  not  essential  that  a  person,  in  order  to  be  a 
party,  should  be  described  among  the  parties  by    [104J 
name.     It  is  enough  if  the  class  to  which  he   be- 
longs is  sufficiently  designated  among  the  parties,  {d) 

Under  8  &  9  Vict.  c.  106,  s.  5,  persons  who  are  not 
parties  may  in  the  case  of  indentures  executed  after 
1st  October,  1845,  sue  on  covenants  in  such  indentures 
which  relate  to  tenements  and  hereditaments. 


Rule  13. — All  the  persons  with  whom   a  contract 
is  made  must  join  in  an  action  for  the  breach  of  it' 

"  A  contract  by  one  person  with  two  jointly  does  not 
comprehend  or  involve  a   contract   with  either   of  them 

{/.)  5  B.  &  C.  355. 

(c)  Chesterfield  Colliery  Co.  v.  Hawkins.  3  II.  &  C.  692,  per  Maimin.  B. 

{d)  Isaacs  V.  Green,  L.  R.,  2  Ex.  352  ;  36  L.  J.  253.  Ex.  ;  M'Laren  v.  Bax- 
ter,  L.  R..  2  C.  P.  539  ;  Sunderland  Ins.  Co.  v.  Kearney,  20  L.  J.  417,  Q.  B. ; 
16  Q.  B.  925. 

I.  Action  on  Contract. — All  the  Marys  v.  Anderson.  24  Pa.  .St.  272  ; 
parties  with  whom  a  contract  is  Clapp  v.  Rice,  r  5  Tiray.  559 ;  Harris 
ni 'fie  must   join   in   action  upon   it.     v.  .Sw.inson.  62  Ala.  "cxi :   U'c.irc 


120 


PARTIES     TO    ACTIONS. 


separately,"  as  "  is  evident  from  the  well-known  doctrine, 
that  a  covenant  or  promise  to  two,  if  proved  in  an  action 
brought  by  one  of  them,  sustains  a  plea  which  denies  the 


Burge,  lo  Ired.  171  ;  Wright  v.  Mc- 
Lemore,  10  Yerg.  235 ;  Davis  v. 
Winnamaker,  2  Col.  638.  All 
jointly  interested  in  the  matter  of  a 
suit  ought  to  join  Lyon  v.  Beriram, 
20  How.  150;  Hill  V.  Gibbs,  5  Hill, 
58;  Ross  V.  Allen,  67  111.  318; 
Michenor  v.  Dale,  23  Pa.  St.  62  ; 
Day  V.  Swan,  13  Me  167  ;  Riley  v. 
Marshall,  5  Ala.  6S2.  Plaintiffs  need 
not  be  partners  if  they  made  the 
contract  jointly.  Wood  v  Fithian, 
24  N.J.  L.  34;  Beller  v.  Block,  19 
Ark.  567.  All  those  to  whom  a 
covenant  is  expressly  made  may 
unite  in  an  action,  though  only  one 
of  them  is  to  be  benefited.  Bird  v. 
Washburn,  10  Pick.  226;  CoUing- 
ham  V.  Owens,  71  111.  398;  Rob- 
bins  V.  Ayres,  10  Mo.  539  ;  Ford  v. 
Bronaugh.  n  B.  Mon.  15;  Master- 
son  v.  Phinizy,  56  Ala.  338  ;  Mc- 
Mahon  y.  Webb,  52  Miss.  425; 
Ailing  V.  Woodruff,  16  La.  Ann.  6; 
McCotter  v.  Lawrence,  4  Hun,  107  ; 
Browner  v.  Davis,  1$  Cal.  11, 
Blanchard  v.  Dyer,  21  Me.  in; 
McNairy  v.  Thompson,  i  Sneed, 
148. 

When  the  contract  is  made  with 
several  jointly  all  should  sue  for 
the  breach,  unless  some  good 
reason  is  shown  in  the  case  why 
they  do  not;  death  or  refusal  to 
join  may  be  such  reasons.  Hays 
v.  Lasater,  3  Ark.  565 ;  Moody  v. 
Sewall,  4  Me.  295  ;  Sims  v.  Tyre,  3 
Brev.  249. 

Non-joinder  of  any  party  legally 
mterested    is    fatal    and    may    be 


taken  advantage  of  at  the  trial  or 
be  pleaded  in  abatement.  Pitkin  v. 
Roby,43  N.  H.  139;  White  v.  Cur- 
tis, 35  Me.  534;  Ball  v.  Con.  F. 
Co.,  32  N.  J.  L.  102.  But  the  older 
cases  give  the  preference  to  the 
former  method.  Ehle  v.  Purdy,  6 
Wend.  629;  Mcintosh  v.  Long,  2 
N,  J.  L.  274  ;  Beach  v.  Hotchkiss,  2 
Conn.  697;  HoUiday  v.  Doggett,  6 
Pick.  359;  Hilliker  v.  Loup,  5  Vt. 
116;  Svveigert  v  Berk,  8  Serg.  & 
R.  308;  Morse  v.  Chase,  4  Watts 
456;  Hansen  v  Morris,  i  Blackf. 
307;  Connolly  v.  Cottle,  i  111.  286; 
Coffee  v.  Eastland,  Cooke  (Tenn.), 
iSgGordon  v.  Goodwin,  2  Nott  & 
M.  /O;  Allen  v.  Luckelt,  3  J.  J. 
Marsh.  165. 

If  nonjoinder  of  plaintiffs  appear 
on  the  face  of  the  pleading,  demur- 
rer lies  through  it  and  may  be 
taken  advantage  of  by  motion  in 
arrest  of  judgment  or  on  error. 
Crump  V.  McKay,  8  Jones,  34; 
Hicks  V.  Branton,  21  Ark.  189; 
Pitkin  V.  Roby,  43  N.  H.  139. 

Misjoinder  of  plaintiffs  in  actions 
on  contract  is  fatal  and  should  not 
be  pleaded  in  abatement,  but  may 
be  excepted  to  at  the  trial.  Dore- 
mus  V.  Selden,  19  Johns.  213  ;  Rob- 
inson V.  Scall,  3  N.  J.  L.  817; 
Ulmer  v.  Cunningham,  2  Me.  117; 
Waldsmith  v.  Waldsmith,  2  Ohio, 
156. 

Since  amendment  by  changing 
the  parties  have  been  allowed  by 
statute  objections  to  misjoinder  of 
i^laintiffs  cannot  be  made  for  the 


ACTIONS     ON    CONTRACT. 


121 


existence  of  the  contract."  {e)  If  X.  contract  with  A. 
and  B.  jointly,  e.  g.,  by  his  promissory  note,  to  pay  them 
^^20,  an  action  must  be  brought  for  a  breach  of  contract 

{e\  Wetherell  v.  Langston,  i  Ex.  644,  per  Curiam.     See  Cabell  v.  Vaughan, 
I  Wms.  Saund.  291?.  291/fe. 


first    time    after    trial.      Dodge    v. 
Wilkinson,  3  Mete.  292.      And  in 
general,  now,  when  the  misjoinder 
appears  on  the  face  of  the  pleading, 
it  must  be  demurred  to.     Petree  v 
Lansing,   66   Barb.   358 ;    Zimmer 
man    v.    Schoenfelt,    3    Hun,   698 
State  V.   Sappington,  68  Mo.  455 
Porter   v.    Clements,    3   Ark.   382 
Vaiden   v.  Stubblefield.    28   Gratt 
157  ;  Tilman  v.  Searcy,  5  Humph 
487  ;  Vaughn  v.   Lovejoy,  34  Ala 
441  ;  Wornack  v.  McAhren,  9  Ind 
6;  Parker  v.  Wiggins,  10  Kan.  424 

The  defendant  may  demur  as  to 
one  of  the  plaintiffs,  if  the  facts 
stated  show  no  cause  of  action 
against  him.  Rumsey  v.  Lake,  55 
How.  Pr.  340  ;  Clarkson  v.  De  Pey- 
ster,  3  Paige,  336;  Gerry  v.  Gerry, 
II  Gray,  381  ;  Hodge  v.  North  Mo. 
Ry.  Co.,  I  Dill.  104;  Tennant  v. 
Pfister,  51  Cal.  513;  Hardee  v. 
Hall,  12  Bush,  328;  Little  v.  Bine, 
5  Jones  Eq.  10, 

A  misjoinder  of  parties  plaintiff 
may  be  cured  by  motion  putting 
them  to  elect  which  will  proceed. 
School  District  v.  School  Dis- 
trict 50  Iowa,  324 ;  Powell  v. 
Bradlce,  9  Gill  &  J.  220;  or  the 
jury  may  find  for  defendant  on  one 
count  and  plaintiff  on  another. 
lb. 

A  misjoinder  of  plaintiff's,  not 
appearing  upon  the  face  of  the 
complaint,  is  waived  if  not  objected 


to  by  demurrer  or  answer,  Hier  v. 
Staples,  51  N.  Y.  140;  Rickey  v. 
Tenbroeck,  68  Mo.  570  ;  by  answer, 
Hastings  v.  Stark,  36  Cal.  126; 
Tennant  v.  Pfister,  51  Cal.  513. 
The  instruction  to  the  jury  cannot 
reach  it.  Lass  v.  Eiselben,  50  Mo. 
123;  nor  will  a  demurrer  to  the 
answer.  McEwen  v.  Hussey,  23 
Ind.  395;  Bonton  v.  Orr,  51   Iowa, 

475- 

A  plea  and  answer  making  ob- 
jection for  non-joinder  not  appear- 
ing on  the  face  of  the  complaint, 
must  show  who  are  the  necessary 
parties.  Robinson  v.  Smith,  3 
Paige,  330;  Story  v.  Livingston,  13 
Pet.  375  ;  Webster  v.  Vandeventer, 
6  Gray,  430 ;  Pond  v.  Clark,  24 
Conn.  382 ;  Bay  State  Iron  Co.  v. 
Goodall,  39  N.  H.  234;  Lillie  v. 
Case,  54  Iowa,  182;  Roberts  v. 
Southern  Minn.  Ry.  Co.,  18  Minn, 
no. 

Suits  in  Equity. — All  persons 
materially  interested  in  the  subject 
of  the  suit,  or  whose  interests  will 
be  affected  by  the  decree  asked  for, 
or  who  are  necessary  to  put  an  end 
to  the  litigation,  should  be  made 
parties.  Williams  v.  Bankhead,  19 
Wall.  571  ;  Tobin  v.  Walkinshaw, 
I  McAU.  29;  Northern  Ind.  R.  R. 
Co.  V.  Michigan  Cent.  R.  R.  Co.,  5 
McLean.  444;  Hawlcy  v.  Cramer, 
4  Cow,  717;  Williams  v.  Russell, 
19  Pick    165  ;  Stevenson  v.  Austin, 


122 


PARTIES     TO    ACTIONS. 


by  A.  and  B.,  and  can  not  be  bri)nght  by  either  A.  or  B. 
separately. 

X.  contracted  with  A.,  on  behah'  of  the  members  of  an 


3  Mete.  480;  Bailey  v.  Mayrick,  36 
Me.  50;  Busby  v.  Littlefield,  31  N. 
H.193;  McConncU  v  McConnell, 
II  Vt.  290;  New  London  Bank  v. 
Lee,  II  Conn.  112;  Hicks  v.  Camp- 
bell, 19  N  J.  Eq.  186;  Oliver  v. 
Palmer,  11  Gill  &  J.  426;  Hawkins 
V,  Chapman,  36  Md.  99;  Clark  v. 
Long,  4  Rand.  451  ;  Hill  v.  Proc- 
tor, 10  W.  Va.  78;  Vaun  v.  Har- 
gett,  2  Dev,  &  B.  Eq.  31  ;  Frazcr  v. 
Le^are,  i  Bailey  Ch.  389 ;  Gilmore 
V.  Johnson,  14  Ga.  683  ;  Duncan  v. 
Mizner.  4  J.  J.  Marsh.  443  ;  Park  v. 
Ballentine,  6  Blackf.  223 ;  Fletcher 
V.  Mansur,  5  Ind.  267 ;  Prentice  v. 
Kimball,  19  111.  320;  Newcombe  v. 
Horton,  18  Wis.  568  ;  Kimball  v. 
Connor,  3  Kan.  430  ;  James  v.  Wil- 
liams, 31  Ark.  117;  Iglehart  v. 
Moore,  21  Tex.  504;  Lucas  v. 
Bank  of  Darien,  2  Stew.  280. 

The  United  States  Supreme  Court 
will  not  make  a  final  decree  on  the 
merits  unless  all  persons  essentially 
interested  are  made  parties  to  the 
suit,  though  not  within  the  jurisdic- 
tion of  the  court.  Russell  V.  Clark, 
7  Cranch,  69. 

This  is  a  rule  of  convenience  and 
may  be  dispensed  with  when  im- 
practicable or  very  inconvenient. 
Donald  v.  Plumb,  8  Conn.  457 ; 
State  v.  Burkhardt,  59  Mo.  78  ;  East 
Rome  Town  Co.  v.  Nagle,  58  Ga. 
478.  And  the  courts  will  not  allow 
it  to  be  applied  to  defeat  the  pur- 
pose of  justice,  if  the  circumstances 
of  the  case  render  the  application 
of  the  rule  impracticable.    United 


States  V.  Parrott,  i  McAll.  280; 
Willeik  v.  Morris  Canal  and  Bank- 
ing Co.,  3  Green  Ch,  398. 

Persons  asserting  several  and  dis- 
tinct rights  cannot  unite  in  a  joint 
suit,  though  their  rights  are  against 
the  same  person.  Struppman  v. 
Muller,  52  How.  Pr.  216;  Hen- 
drickson  v.  Wallice,  31  N.  J.  Fq. 
605  ;  Reybold  v.  Herdman.  2  Del. 
Ch.  34,  Parsons  v.  Lyman,  4 
B  atch.  433 ;  Taylor  v.  King,  32 
Mich.  42  ;  Farrot  v.  Parish,  30  La. 
Ann.  606;  Baker  v.  Rinehard,  il 
W.  Va.  249;  Ex  parte  State  Bank, 
15  Ark.  264  But  no  objection  that 
parties  claiming  different  interests 
have  asserted  them  in  the  same  suit. 
Faulk  v.  Faulk,  23  Tex.  663.  So 
parties  whose  interest  depend  upon 
the  same  right  and  who  would  be 
affected  alike,  may  be  properly 
joined.  Catlin  v.  Wheeler,  49  Wis. 
549 ;  Creed  v.  Lancaster  Bank,  i 
Ohio  St.  6 ;  Porter  v.  Clements,  3 
Ark.  382.  So  if  where  some  ground 
exists  in  common,  so  that  if  one 
sued  the  other  would  have  to  be 
made  a  defendant,  both  may  join, 
though  their  rights  and  titles  are 
neither  altogether  joint.  Bardwell 
V.  Ames,  22  Pick.  353 ;  Taylor  v. 
King,  32  Mich.  32. 

Generally,  unconnected  parties 
may  join  in  equity  if  they  have  one 
connected  interest  in  the  point  in 
issue.  Plum  v.  Morris  Canal  and 
Banking  Co.,  10  N.  J.  Eq.  259; 
Smith  v.  Schulting,  14  Hun,  54 ; 
Middleton    v.    Flat   River   Co.,   27 


ACTIONS    ON    CONTRACT. 


123 


orchestra  to  which  A.  himself  belonged,  that  he  would 
make  them  certain  payments.  It  was  held  that  the 
contract   being  (under   the  circumstances  of  the  case)  a 


Mich.  534;  Cwen  v.  Frink,  24  Cal. 
177  ;  Farrot  v.  Parish,  30  La.  Ann. 
607  ;  North  v.  Bradway,  9  Minn. 
186;  Armstrong  v.  Treasurer,  10 
Ohio  St.  236.  As  lien-holders  may 
be  entitled  to  similar  relief  against 
acts  of  the  debtor  which  are  a  com- 
mon injury  to  them  all,  preventing 
them  from  enforcing  their  liens. 
Clarkson  v.  De  Peyster,  3  Paige, 
321  ;  Love  v.  Getsinger,  7  N.  J  Eq. 
202 ;  Hagerty  v.  Nixon,  26  N.  J. 
Eq.  42;  Ruffling  v.  Tilton,  12  Ind. 
260 ;  Gates  v.  Boomer,  17  Wis.  458  ; 
North  V.  Bradway,  9  Minn.  185  ; 
Elfelt  V.  Hinch,  5  Oreg  255  ;  Ken- 
nedy V.  Kennedy,  2  Ala.  624; 
Brown  v.  Bates,  10  Ala.  436. 

All  the  holders  of  notes  given  to 
different  parties  but  secured  by  the 
same  mortgage,  may  join  to  fore- 
close it,  though  it  may  be  regarded 
as  a  several  security  by  each.  Tyler 
V.  Yreka  Water  Co.,  14  Cal.  217; 
Burnett  v.  Pratt,  22  Pick.  557 ; 
Thayer  v.  Campbell,  9  Mo.  279 ; 
Pogue  V.  Pratt,  25  111.  352  ;  Swen- 
son  V.  Plow  Co.,  14  Kan.  388. 

So  material-men,  having  liens  on 
the  same  building  but  without  any 
community  of  interest  in  the  claims 
themselves,  may  join  under  the 
statute  in  an  equitable  action  to  en- 
force their  liens.  Barber  v.  Rey- 
nolds, 33  Cal.  502. 

But  parties  cannot  join  to  restrain 
the  imposition  of  a  tax  on  their  re- 
spective lands  and  not  upon  any 
common  property  owned  by  them. 
Magee  v.  Cutler,  43  Barb.  239.    On 


a  contract  to  do  work  for  two  par- 
ties, one  cannot  sue  in  equity  with- 
out joining  the  other  or  stating  an 
excuse  for  not  doing  so.  Braintree 
v.  Southworth,  4  Gray,  304. 

Persons  having  conflicting  inter- 
ests as  to  the  subject  matter  of  the 
suit  should  not  be  joined  as  com- 
plainants in  a  suit  in  equity,  though 
it  is  immaterial  whether  the  inter- 
ests of  defendants  conflict  or  not. 
Parsons  v.  Lyman,  4  Blatch.  432. 

Misjoinder— Non-joinder.— Co\ir\s 
of  equity  are  slow  to  dismiss  suits 
for  misjoinder  or  non-joinder  of 
parties  where  the  difficulty  can  be 
remedied  or  relief  given  without 
injuring  any  one.  Bunce  v.  Gal- 
lagher, 5  Blatch.  481. 

A  bill  will  not  be  dismissed  for 
misjoinder  of  complainants  unless 
their  interests  are  so  diverse  they 
cannot,  with  propriety,  be  included 
in  one  decree.  Michan  v.  Wyatt, 
21  Ala.  813. 

The  method  of  taking  advantage 
of  want  of  parties  to  a  bill  are — i. 
By  demurrer  on  the  record.  2.  By 
demurrer  ore  tenus.  3.  By  plea  ; 
and,  4.  By  answer.  Gordon  v. 
Holland,  3  Ired.  Eq.  363  ;  Stillwell 
V.  McNerly,  2  N.  J.  Eq.  305. 

A  demurrer  for  want  of  parties 
must  show  the  complainant  who  are 
the  proper  parties  so  as  to  enable 
him  to  amend  his  bill.  Dias  v, 
Bouchand,  10  Paige,  454. 

The  objection  of  defect  of  parties 
is  deemed  waived  if  not  made  by 
demurrer    or     answer.      Davis     v. 


124 


PA  K  TIRS     TO     A  C  TIONS. 


contract  with  A.  and  the  other  performers,  A.  could  not 
sue  alone  for  its  breach,  and  the  question  raised  in  the 
case,  was  not  whether  A.  could  sue  alone  on  a  contract 


Bcckstein,  69  N.  Y.  443  ;  Risley  v. 
Wightman,  13  Hun,  165;  Reugger 
V.  Lindenberger,  53  Mo.  365  ;  Uunn 
V  Hannibal  and  St.  Joe.  Ry.  Co  ,68 
Mo.  279;  Bonton  v.  Orr,  51  Iowa, 
475  ;  McEwen  v.  Hussey,  23  Ind. 
395  ;  Baldwin  v.  Canfield,  26  Minn. 
58;  Daughdrill  v.  Helms,  53  Ala. 
65  ;  Adger  v.  Pringle,  1 1  S.  C.  543  ; 
Alley  V,  Carroll,  6  Heisk.  234; 
Wing  V.  Cooper,  37  Vt.  186;  Par- 
chen  V.  Peck,  2  Mont.  570 ;  Spencer 
V.  Van  Cott,  2  Utah,  342. 

The  objection  that  some  of  the 
plaintiffs  have  been  improperly 
joined  cannot  be  taken  at  the  hear- 
ing. Bowman  v.  Burnley,  2  Mc- 
Lean, 376;  Trustees  of  Watertown 
V.  Cowen,  4  Paige,  510. 

Where  the  objection  that  one  of 
the  complainants  has  no  interest  in 
the  suit  appears  on  the  face  of  the 
bill,  it  can  only  be  taken  advantage 
of  by  demurrer.  Talmage  v.  Pell, 
9  Paige,  410. 

Where  the  objection  of  the  want 
of  a  party  complainant  does  not 
appear  on  the  face  of  the  bill,  it  must 
be  taken  advantage  of  by  plea  and 
answer.  It  is  too  late  to  make  such 
formal  objection  for  the  first  time 
at  the  hearing.  Story  v.  Livingston, 
13  Pet.  359. 

A  bill  should  not  be  dismissed  for 
non-joinder  of  parties  without  op- 
portunity first  given  the  plaintiff  to 
amend.  Colbert  v.  Daniel,  32  Ala, 
314.  But  where  the  Chancellor 
propose  to  the  complainant  to 
amend  his  bill,  which  is  defective 
for  want  of  the  necessary  parties, 


and  he  refuses  to  do  so,  it  may  be 
dismissed.  Goodman  v.  Benham, 
16  Ala.  625. 

The  court  may  itself  state  the 
objection  of  want  of  proper  parties 
and  refuse  to  proceed  to  make  a 
decree.  Morse  v.  Machias  Water 
Power  Go.,  42  Me.  1 19. 

It  is  a  ground  of  demurrer  to  the 
whole  bill  that  one  of  the  complain- 
ants has  no  interest  in  the  suit,  and 
was  improperly  joined,  but  there  is 
no  such  rule  in  regard  to  the  de- 
fendants. Clarkson  v.  De  Peyster, 
3  Paige.  336 ;  Barstow  v.  Smith, 
Walk.  Ch,  394. 

McAllister,  J.,  in  Tobin  v.  Walk- 
inshaw,  i  McAU.  26,  considers  the 
joinder  of  parties  in  equity  in  the 
United  States  courts  very  practi- 
cally and  fully,  as  follows  : 

"In  regard  to  the  want  of  parties 
in  this  case,  which  gives  rise  to  the 
question  of  jurisdiction,  it  has  been 
urged  by  complainants  that  it  is  too 
late  for  defendants  to  object  to  a 
want  of  parties,  and  that  this  was 
matter  only  for  a  plea  in  abate- 
ment. 

"  Now,  a  plea  for  want  of  parties 
is  not  matter  for  abatement.  It  is 
a  plea  in  bar,  and  goes  to  the  whole 
bill,  as  well  to  the  discovery  as  to 
the  relief  prayed.  Again,  the  rule 
is  that  if  want  of  parties  is  apparent 
on  the  face  of  the  bill,  the  defect 
may  be  taken  advantage  of  by  de- 
murrer. If  such  defect  be  vital,  it 
may  be  insisted  on  at  the  hearing, 
and  if  the  court  proceed  to  a  decree, 
such   decree  may  be  reversed.     If 


ACTIONS     ON    CONTRACT. 


\2S 


With  A.  and  B.  jointl}',  but  whether  the  particular  contract 
was  a  joint  contract.  (/) 

X.  covenants  with  A.  and  B.    Neither  A.  nor  B.    [105] 
jan  sue  separately  for  a  breach  of  the  covenant ; 

(/)  Lucas  V.  Beale,  lo  C.  B.  739  ;  20  L.  J.  134,  C.  P.  If  A.  had  been  acting 
merely  as  agent  for  the  orchestra,  and  the  contract  had  been  with  him,  he  inigh 
probably  have  sued  (see  Rule  17,  Exception  4).  But  he  was  himself  one  of  the 
parties  with  whom  the  contract  was  made,  and  not  a  mere  agent  with  "whom  a 
contract  was  made  on  behalf  of  others. 


the  defect  is  not  apparent  on  the 
bill,  it  may  be  propounded  by  way 
of  a  plea,  or  it  may  be  relied  on  in 
a  general  answer. 

"  The  thirty-ninth  rule  of  equity 
expressly  gives  the  right  to  defend- 
ant to  avail,  in  his  answer,  of  any- 
thing which  would  be  good  in  the 
form  of  a  plea  in  bar,  and  the  fifty- 
second  rule  provides  that  where 
defendant,  by  his  answer,  sug- 
gests the  want  of  parties,  plaintiff 
shall  be  at  liberty,  within  fourteen 
days  after  answer  filed,  to  set  down 
the  cause  for  argument  upon  that 
objection  alone.  These  rules  evi- 
dently authorize  a  party  to  avail 
himself  of  a  defect  for  want  of  par- 
ties as  effectually  in  his  answer  as 
by  plea  in  bar. 

"  Had  defendants  availed  them- 
selves of  the  right  to  plead  in  bar, 
much  time  and  discussion  would 
have  been  saved.  But  they  have 
the  right  to  bring  forward  their 
objection  in  the  form  of  an  answer. 
Having  done  so,  I  am  called  on  to 
deride  if  there  are  such  parties  be- 
fore the  court  as  will  authorize  it  to 
adjudicate  upon  this  cause,  whether 
this  court  be  deemed  to  be  a  court 
of  general  equity  jurisprudence,  or 
whether  the  peculiar  structure  of 
the  limited  jurisdiction  of  this  court, 
under  the  constitution  and  laws  of 


the  United  States,  be  considered." 

Then  proceeding,  he  says,  after 
a  view  of  the  authorities  : 

"  The  principles  deducible  from 
the  foregoing  authorities  are  : 

"  I.  That  the  general  rule  in 
equity  is  that  all  persons  whose  in- 
terests may  be  materially  affected 
by  the  decree  must  be  before  the 
court  to  enable  it  to  act. 

"  2.  That  this  rule  may  be  re- 
laxed so  as  to  dispense  with  formal, 
and  under  certain  circumstances, 
with  necessary  parties. 

"  3.  That  the  rule  which  has  been 
announced  by  the  decisions  of  the 
Supreme  Court  of  the  United  States 
is  but  a  reiteration  of  the  doctrine 
of  a  court  of  equity  in  the  applica- 
tion of  its  chancery  jurisdiction. 

"  4.  That  the  act  of  congress  of 
February  28th,  1839,  ''■"•^^  ^^^^  forty- 
seventh  rule  of  equity,  which  allow 
one  or  more  defendants  to  be  sued 
in  the  absence  of  others  without 
the  jurisdiction  of  the  court,  apply 
only  to  competent  parties,  and  are 
simply  an  affirmance  of  previous 
decisions  of  the  Supreme  Court  of 
the  United  States,  and  do  not  vary 
the  rule  as  to  indispensable  parties. 
17  How.  141. 

"  5.  That  the  peculiar  structure 
of  the  limited  jurisdiction  of  the 
courts   of  the  United  States  does 


r2t> 


PARTIES     TO    ACTIONS. 


and  even  if  B.  has  not  executed  the  deed,  still  he  must 
join  with  A.  in  an  action  on  the  covenant,  {g)  for  the  par- 
ties who  have  not  sealed  may  sue  together  with  those  who 

ig)  Petiie  V.  Buiy,  3  B.  &  C.  353. 


not  abolish  or  modify  the  rule  as 
to  indispensable  parties,  and  that 
the  fact  that  such  are  without  the 
jurisdiction  will  not  enable  the 
court  to  proceed  against  the  parties 
before  it 

"6.  That  it  has  been  decided  by 
the  Supreme  Court  of  the  United 
States  (12  Wheat.  194),  that  where 
complainant  seeks  to  set  aside  a 
fraudulent  purchase  of  land  by  de- 
fendant, and  to  enjoin  his  proceed- 
ing on  a  judgment  he  had  obtained 
in  an  ejectment  at  law  against  com- 
plainant, the  party  through  whom 
the  latter  claimed  his  equitable  title 
was  an  indispensable  party. 

"  7.  That  it  has  been  decided  in 
the  English  chancery  (i  Beav.  106), 
that  one  tenant  in'  common  can- 
not, without  joining  with  him  his 
co-tenant,  sustain  a  bill  in  equity 
against  the  trespasser  in  possession, 
and  enjoin  him  from  setting  up  an 
outstanding  term,  inasmuch  as  the 
bill  prayed  for  the  delivery  of  title- 
deeds  and  account  of  rents,  these 
being  matters  in  which  the  absent 
person  was  interested,  and  was 
therefore  and  indispensable  party  ; 
that  where  a  question  arises  as  to 
parties,  it  is  not  for  the  complain- 
ant to  say  the  court  must  proceed 
to  a  hearing  when  he  (complain- 
ant) may  disclaim  a  part  of  the  re- 
lief and  obtain  the  balance  ;  and 
lastly,  that  the  fact  that  the  absent 
party  resided  out  of  the  jurisdiction 
of  the  court  made  no  difference  in 


the  application  of  the  rule. 

"  8.  That  it  has  been  decided 
that  where  bill  is  filed  to  compel 
defendant  to  transfer  to  complain- 
ant a  share  in  a  mine  fraudulently 
obtained  by  him,  and  to  account 
for  the  profits  thereof,  jurisdiction 
may  be  sustained  on  the  ground 
that  the  bill  seeks  only  a  specific 
share  in  the  profits  thereof;  but  it 
was  expressly  affirmed  that  if  the 
bill  had  sought  for  a  delivery  of 
title-papers,  which  touches  the  in- 
heritance, or  for  an  account  of  the 
mines,  these  being  matters  in  which 
the  other  adventurers  in  the  mine 
were  interested,  the  court  could  not 
proceed,    such    other    adventurers 

being  indispensable  parties. 

*  *        *  *        *        *  * 

"  In  this  case,  I  am  satisfied  that 
the  owners  of  the  mines  are  parties 
whose  interests  must  necessarily  be 
affected  by  any  decree  which  can 
be  made  in  conformity  with  this 
bill.  Cases  are  also  cited  to  show 
that  the  courts  of  the  United  States 
will  consider  the  rule  as  to  parties 
flexible  where  the  absent  persons 
who  should  be  made  parties  are 
out  of  the  reach  of  the  process  of 
the  court,  but  in  each  of  them  it 
will  be  found  that  the  utmost  ex- 
tent to  which  a  relaxation  has  been 
carried  has  been  to  dispense  with  a 
necessary  party  only.  But  there  is 
one  feature  m  this  case  which  dis- 
tinguishes it  from  all  others.  It  is 
that  two  of  the  absent  persons  whose 


ACTIONS     ON    CONTRACT.  127 

have  sealed,  and  as  they  may  sue,  they  must  sue,  and  an 
action  can  not  be  maintained  without  them,  {h) 

Nor  does  it  make  any  difference  that  the  covenantee 
who  has  not  executed  a  deed  does  not  assent  to  the  cov- 
enant, and  afterwards  disclaims  it.  It  is  still  necessary 
that  he  should  join  with  his  co-covenantee  in  an  action  for 
the  breach  of  covenant.     Thus,  where  X.  covenanted  with 

A.  and  B.  jointly,  and  B.  did  not  execute  the  deed,  but 
refused  his  assent  to  the  covenant,  and  afterwards  dis- 
claimed it  in  a  deed  to  which  X.  was  no  party,  it  was  held 
that  A.  could  not  sue  X.  without  joining  B.  "  The 
meaning  of  the  words  of  the  covenant  ....  is  that 
the  defendant  will  pay  the  two  covenantees,"  and  "  that 
meaning  is  the  same  whether  they  accept  the  covenant  or 
not,  and  the  acceptance  of  the  one,  and  the  refusal  of  the 
other,  does  not  convert  it  into  a  covenant  to  one  only." 
{{)  It  was  also  held  that  A.  could  not  in  this  case  {J) 
compel  B.  to  let  his  name  be  used,  since  the  court  would, 
on  B.'s  application,  strike  out  his  name  when  used  as  a 
co-plaintiff,  {k)  and  hence,  in  effect,  that  A.  could  neither 
directly  nor  indirectly  bring  an  action  without  the  assent 
of  B.  ' 

It  is  often  hard  to  determine  who  are  the  persons  with 
whom  a  given  simple  contract  is  made,  and  who,  therefore, 
must  sue   for   its  breach.     The  difficulty  is  often, 
though,   not  invariably  one  of  interpretation,  i.  c,    [106] 
of  determining  from  the  words  of  a  given  contract 
whether  it  is  to  be  interpreted  as  a  contract  with  A.  and 

B.  jointly,  or   a   contract  with  A.   and    B.  severally.  (/) 

{h)  Ibid.  355,  judgment  of  Abbott,  C.  J. 

(?)  Wetherell  v.  Langston,  i  Exch.  644,  per  Curiam. 

(j)  But  see  post. 

{k)  Langston  v.  Wetherell,  27  L.  J.  400,  Ex. 

(/)  See  as  to  interpretation, /(jj/. 

interest  would  be  afieded  by  a  de-  if  bringing  them  before   the  court 

crce,  are  residents  of  this  city  and  this    case    would     be    beyond     its 

within  the  reach  of  the  process  of  jurisdiction,  can    the  court,  by  in- 

this    court.    The    one    reason    for  direction,    adjudicate     upon     their 

their  omission  as  parties  is  the  fact  rights  and  thus  do  indirectly  what 

that  their  introduction  would   oust  it  would  not  rightfully  directly  do  ? 

the  'urisdiction  of  this  court.     But  I  think  not. 


128  PARTIES     TO    ACTIONS. 

Where  (.lie  question  is  in)t  one  merely  of  interpretation 
the  main  principles  for  the  determination  of  this  question 
are  as  follows : — 

I  St.  Where  there  is  a  separate  consideration  proceed- 
ing from  different  persons,  there  is  considered  to  be  a 
contract  with  each  of  them,  and  they,  therefore,  can  not 
join  in  an  action  for  breach  of  contract.  Thus,  where 
two  persons  contracted  to  assist  the  defendant  with  their 
respective  horses,  and  were  to  give  in  their  accounts  sep- 
arately, it  was  held  that  there  was  a  separate  contract  with 
each  of  them,  and  that  they  could  not  bring  a  joint  action 
for  the  hire  of  their  horses,  [m) 

2nd)3\  Where  the  consideration  moves  from  several 
persons  jointly,  such  persons,  as  having  the  joint  legal 
interest  in  the  contract,  should  be  joined  as  plaintiffs  in 
suing  for  a  breach  of  contract,  {n)  Thus,  where  X.  con- 
tracted with  A.  for  the  service  of  A.  and  of  other  persons, 
and  the  consideration  [sc.  the  joint  services  of  A.  and  these 
persons),  proceeded  from  A.  and  them,  it  was  held  that 
the  contract  was  a  joint  contract  with  A.  and  the  other 
persons  thereto,  and  that  they  must  join  m  suing  for  its 
breach.  (<?)  Where,  again,  A.  and  B.  who  were  bail,  em- 
ployed X.  to  surrender  their  principal,  it  was  held  that 
the  only  contract  which  the  law  could  imply  was  a  con- 
tract with  A.  and  B.  jointly,  and  that  A.  could  not  sue 
alone  for  a  breach  of  the  contract.  (/)  "  Taking  the  case 
most  favorably  for  the  plaintiff,  [A.]  and  supposing 
[107]  the  whole  consideration  to  have  been  paid  by  him- 
self and  [B.],  they  were  jointly  interested,  and 
neither  of  them  could  maintain  a  separate  action."  {q) 

It  has  been  laid  down,  that  "  though  the  consideration 
be  joint,  yet,  if  the  promise  is  several,  the  several  prom- 

(w)  Smith  V.  Hunt,  2  Chit.  142  ;  Brand  v.  Boulcott,  3  B.  &  P.  235. 
(«)  Broom,  Parties,  s.  20.     Hill  v.  Tucker,  I  Taunt.  7  ;  Cory  ton  v.  Lithebye, 
2  Wms  Saund.  iita  ;  Chanter  v.  Leese,  4  M.  &  W.  295  ;  Lucas  v.  Beale,  10  C. 

B.  739     20  L.  J.  134,  C.  P.  ;  Pugh  V.  Springfield,  3  C.  B.,  N.  S.,  2  ;  27  L.  J.  34 

C.  P. 

ip)  Lucas  V.  Beale,  10  C.  B.  739  ;  20  L.  T.  134,  C.  P. 

(/  )  Hill  V.  Tucker,  i.  Taunt.  7. 

(q)  Hill  V.  Tucker,  i  Taunt.  9,  per  Chambre,  J. 


ACTIONS    ON    CONTRACT.  129 

isee   \i.  e.,  the  person  to  whom  the  separate  promise  is 
made]  may  sue  alone."  (r) 

This  statement  rests  on  cases  such  as  the  following  : — 

In  consideration  that  A.  and  B.  would  sell  to  X.  their 
partnership  business,  X.  promised  A.  to  pay  him  certain 
sums  of  money,  and  it  was  held,  on  a  motion  in  arrest  of 
judgment,  that  A.  could  maintain  an  action  against  X. 
without  joining  B.  {s) 

"  It  is  true,"  it  was  said  by  Parke,  B.  in  this  case, 
"  that  no  stranger  to  a  consideration  can  sue  ;  but  in  the 
present  case  the  separate  interest  of  the  plaintiff  in  the 
partnership  fund  is  the  consideration  upon  which  the 
promise  is  founded."  (/) 

A  partner,  again,  has  been  held  capable  of  maintaining 
an  action  upon  an  agreement  in  writing  made  with  him 
alone,  although  the  agreement  related  to  the  business  of 
the  firm,  and  the  consideration  was  a  release  by  the 
partners  in  question  of  a  debt  due  to  the  firm,  [ic)  Here, 
also,  stress  was  laid  by  the  court  upon  the  fact  that  under 
the  complicated  circumstances  of  the  transactions  between 
the  parties  there  was  a  separate  consideration  moving 
from  the  plaintiff  for  the  contract  with  him. 

These  cases  arc  not,  therefore  (it  is  submitted),  incon- 
sistent  with  the  principle  that  an  action  for  a  breach  of 
contract  should  be  brought  by  all  the  persons  from  whom 
a  joint  consideration  moves.  They  go  to  show  that 
where  the  consideration  is  divisible,  so  that  one  [108] 
part  of  it  may  be  treated  as  proceeding  from  one 
only  of  the  parties  to  the  contract,  this  separate  considera- 
tion  will  support  -a  separate  promise  to  the  party  from 
whom  it  proceeds,  who,  therefore,  may  sue  alone  for  the 
breach  of  such  promise. 

One  of  two   co-plaintifTs  has  a  right  (v)  to   bring  an 

(r)  Lush,  Practice,  3rd  ed..  2r. 

(s)  Jones  V.  RoViinson,  I  Kxch.  454  ;   17  L.  J.  36,  Ex. 

(/)  Jones  V.  Robinson,  I  Exch.  456,  judgment  of  Parke,  B. 

(u)  Ajacio  V.  Forbes,  14  Moo.,  P.  C.  160, 

{v)  CoMstrast  Langston  v.  Welhercll,  27  L.  J.  400,  Ex.,  cited  ante,  with 
Emery  v.  Mucklow,  10  Bing.  23.  Tlie  dilTerence  seems  to  be  that  the  Courts 
will  not  force  a  person  to  be  treated  as  a  party  with  whom  a  contract  is  made 
9 


I30  PARTIES     TO    ACTIONS. 

action  in  the  name  of  both,  (.r)  nor  has  the  court  any 
power  to  nitei  Icre,  unless  the  co-plaintiff's  name  be  used, 
not  only  against  his  will,  but  fraudulently,  {y)  Hence 
"  one  of  several  partners  has  a  right  to  use  the  name  of 
the  tirm  '  {d)  in  order  to  bring  an  action.  But  a  co- 
plaintiff  whose  name  is  used  without  his  permission  is  not 
without  protection. 

I  St.  He  may  obtain  an  indemnity  against  costs  from 
the  party  who  makes  use  of  his  name ;  {a)  i.  e.,  he  may 
apply  to  the  court  to  have  such  party's  proceedings 
stayed  till  he  gives  security  for  costs,  {b) 

2ndly.  He  may  release  or  settle  the  action,  {c) 

Any  one  of  several  co-plaintiffs  may  give  the  defend- 
ant a  release  f'-om  the  action,  which  is  good,  and  may  be 

pleaded,  unless  it  is  fraudulent,  {d) 
[109]  \Vhen  two  of  several  co-plaintiffs  gave  a  release 

to  the  defendant,  the  court  refused  to  interfere,  {e) 

"  No  doubt  this  is  ...  an  exercise  of  a  strict  legal 
right  in  a  manner  very  mischievous  and  injurious  to  the 
other  plaintiffs,  and  for  which  the  parties  may  perhaps  be 
responsible  to  another  tribunal ;  but  we  have  no  power  to 
interfere  if  there  be  the  smallest  right  or  real  interest  on 
which  the  release  may  operate  at  law.  If  the  plaintiff 
[A.]  is  not  suing  altogether  on  behalf  of  the  other  plain- 
tiffs— if  he  be  not  a  mere  name — the  release  by  him  is 
effectual,  and  we  ought  not  to  interfere.  A  court  of  law 
has  no  machinery  for  working  out  the  equities  of  these 

when  he  has  never  assented  to  its  being  made  with  him  ;  but  that  where  two 
persons  have  allowed  a  contract  to  be  made  with  them,  the  Couits  will  allow 
one  of  the  two  to  use  the  name  of  the  other  in  an  action  for  its  breach. 

{x)  Emery  v.  Mucklow,  10  Bing.  23. 

{y)  Ibid.  24. 

(2)  Whitehead  v.  Hughes,  2  D.  P.  C.  259.  Strictly  speaking,  the  names  of 
co-partners  for  actions  are  not  brought  in  the  name  of  the  firm.     See  Rule  20. 

{a)  Whitehead  v.  Hughes,  Ibid.  25S. 

{b)  Laws  V.  Bott,  16  M.  &  W.  300.  The  plaintiff  whose  name  is  used  has 
not,  however,  in  all  cases  an  al)solute  right  to  an  indemnity  against  costs.  Emery 
V.  Mucklow,  10  Bing.  23. 

(c)  Crook  V.  Stephens,  5  B.  N.  C.  688  ;  Johnson  v.  Holdsworth,  4  D.  P.  C 
63  ;  Herbert  v.  Piggott,  2  C.  &  M    384. 

(</)  Rawstorne  v.  Gandell,  15  M.  &  W.  304  ;  15  L.  J.  291,  Ex. 

{€)  Ibid. 


ACTIONS     ON    CONTRACT.  i-.i 

conflicting  interests.  In  truth,  the  application  is  neither 
more  nor  less  than  a  bill  in  equity  to  discover  whether 
[A.]  is  or  is  not  still  interested  in  the  concern."  (/) 

"  We  can  not  interfere  to  prevent  the  defendants  from 
pleading  the  release,  unless  a  clear  case  of  fraud  between 
them  and  the  releasors,  to  the  prejudice  of  their  co-plain- 
tiffs be  made  out,  or  unless  it  be  shown  that  the  release 
was  executed  by  persons  who  were  suing  as  mere  trustees, 
having  no  real  interest  in  the  subject-matter  of  the  action. 
But  so  long  as  a  person  has  shares  in  such  an  under- 
taking, he  has  an  interest  which,  however  small  it  be,  is 
sufficient  to  enable  him  to  release  an  action  in  which  he 
is  a  plaintiff";  and  the  case  is  quite  diff"erent  from  the 
familiar  one  of  assignor  and  assignee,  in  which  the  courts 
for  the  first  time  interposed  in  this  way.  The  plaintiff 
[A.]  holds  fifty  shares  in  this  undertaking,  and  is,  there- 
fore entitled  at  law  to  release  the  claim  of  the  company, 
subject  to  his  responsibility  to  his  co-partners  for  so 
doing.  It  is  not  shown  upon  these  affidavits  that  he  ever 
agreed  with  the  other  plaintiffs  not  to  release  the  action  ; 
it  is  shown,  indeed,  that  ne  agreed  that  the  demand  should 
be  enforced  in  his  name,  but  that  can  not  prevent  him 
from  executing  a  release  to  the  defendants  if  he 
think  fit.  In  the  common  case  of  two  co-plaintiffs  [no] 
equally  interested,  if  one  of  them  thinks  fit,  out  of 
pure  friendship  to  the  defendant,  to  release  the  action,  the 
court  can  not  on  that  account  interfere  to  set  the  release 
aside."  {g) 

But  the  court  will  set  aside  a  release  if  it  be  manifestly 
shown  to  be  fraudulent,  {li)  The  fraud,  however,  must 
be  clearly  made  out,  for  "  where  a  co-plaintiff  is  by  law 
competent  to  give  a  release,"  and  "  the  court  are  called 
upon  to  set  it  aside  upon  the  ground  of  fraud,  the  plain- 
tiff" applying  must  make  out  a  very  strong  case  of  fraud  ;  " 
it)  and  the  release  certainly  can  not  be  got  rid  of  unless 

(/)  Uawstorne  v.  Gariflcll,  15  M.  &  W.  307.  per  POLLOCK,  C.  B. 
{g)  Ibid.  307,  308.  judgment  of  I'arkk,  B. 
(//)  Junes  V.  Hcibeit,  7  'I'aunt.  421. 
(1)   Ibid..  422,  i)cr  CUKIAM. 


132  PARTIFS     TO    ACTIONS. 

fraud  is  nianifestl)'  proved,  {k)  It  would  further  seem 
that  the  release  may  be  got  rid  of  where  the  co-plaintiff 
whose  name  is  used  has  no  real  interest  in  the  action.  (/) 
Such  a  release,  would,  however,  almost  necessarily  be 
fraudulent. 

Though  the  courts  may,  apparently,  still  set  the  plea 
ot  a  release  aside,  the  right  course  is  now  to  state  in  an 
equitable  riplication  the  grounds  on  which  the  release  can 
be  objected  to.  {jh) 

Rule    14. — One  and  the  same  contract,  whether 

it  be  a  simple  contract  or  a  contract   by  deed,  can 

not   be    so  framed   as   to   give   the  promisees 

[hi]    or  covenantees  the  right  to  sue  upon  it  both 

jointly  and  separately.  (;2) 

A  contract  {0)  can  not  be  made  so  as  to  entitle  several 
persons  under  it  both  jointly  and  severally.  They  must 
be  entitled  under  it  either  jointly  only,  or  severally  only, 
and  must  sue  accordingl3^  {p) 

In  other  words,  a  covenant  "  may  be  either  a  joint  or 
several  covenant,  and  it  will  depend  upon  the  context 
whether  it  is  to  be  taken  as  joint  or  several,  but  it  can  not 
be  both."  {g)     For,  "  it  is  fully  established    .    .    .    that  one 

{k)  Philips  V.  Claggett,  ii   M.  &  W.  84  ;  12  L.  J.  275,  Ex. 

(/)  Ibid.  ;  Rawstorne  v.  Gandell,  15  M.  &  W.  304  ;   15  L.  J.  291,  Ex. 

(w)  De  Pothonierv.  De  Mattos,  E.  B.  &  E.  461  ;  27  L.  J.  260,  Q.  B.  See 
further,  as  to  nominal  and  real  plaintiffs,  ante. 

The  cases  in  which  an  action  on  a  contract  may  be  brought,  either  by  a  prin- 
cipal or  agent,  constitute,  in  a  sense,  an  exception  to  the  rule  that  all  tlie  pf'rsons 
must  sue  with  whom  a  contract  is  made.     See  Chapter  V. 

(«)  Bullen,  Pleadings,  3rd  ed.  471.  Slingsby'.s  Case,  5  Coke,  18^  ;  Brad- 
burn  V.  Botfield,  14  M.  &  W.  559  ;  Keighiley  v.  Watson,  3  Exch.  716. 
723. 

(o)  The  cases  refer  almost  wholly  to  covenants,  and,  therefore,  in  consider- 
ing this  rule  reference  is  made  to  covenants  only.  But  the  rule  seems  to  apply  to- 
aH  contracts  in  writing.  Compare  Pugh  v.  Stnngfield,  3  C.  B.,  N.  S.,  2  ;  27  L. 
J.  34  C.  P.  ;  4  C.  B.,  N.  S.,  364;  27  L.  J.  225,  C.  P. ;  Owston  v.  Ogle,  13  East. 
538.     Broom,  Parties.  2nd  ed.,  ss.  20,  21  ;   Bullen,  Pleadings,  3rd  ed.,  471. 

(/)  Bullen,  Pleadings,  3rd  ed.,  471. 

(q)  Keightley  v.  Watson,  3  Exch.  726,  judgment  of  Rolfk,  B. 


ACTIONS     ON    CONTRACT.  133 

and  the  same  covenant  can  not  be  made  both  joint  and 
several  as  regards  the  covenantees."  (r) 

One  and  the  same  covenant  with  A.  and  B.  must 
either  be  a  covenant  with  both  of  them  jointly  :  i.  e.,  a 
covenant  with  A.  and  B.  collectively  or  a  covenant  with 
each  of  them  separately ;  i.  e.,  a  covenant  with  A.  sepa- 
rately, and  with  B.  separately.  In  the  first  case,  A.  and 
B.  must  join  in  suing  for  a  breach  of  the  covenant.  In 
the  second  case,  A.  must  sue  separately,  and  B.  sepa- 
ratel}'.  A  several  or  separate  covenant,  in  fact,  with  two 
or  more  persons  is  only  two  or  more  separate  covenants 
expressed  in  a  short  form. 

All  the  rule  lays  down  is,  that  what  is  in  law  one  cove- 
nant can  not  be,  as  regards  the  covenantees,  at  once  joint 
and  several.  It  may  well  be  that  what  would 
appear  to  an  ordinary  reader  but  one  covenant,  is  [112] 
in  fact  two  covenants ;  e.  g.,  first,  a  joint  covenant 
with  A.  and  B.,  and  next  a  separate  covenant  with  A.  and 
B.,  separately. 

The  rule  as  to  covenantees  may  be  illustrated  by  a 
comparison  with  the  rule  as  to  covenantors. 

Covenantors  may  make  themselves  by  the  same  cove- 
nant jointly  as  well  as  severally  liable,  but  they  can  not 
by  the  same  covenant  give  the  covenatees  joint  as  well  as 
several  rights  of  action,  {s) 

Thus  X.  and  Y.  may  covenant  with  A.,  so  as  to  enable 
A.  on  the  same  covenant  to  sue  either  X.  and  Y.  jointly, 
or  X.  and  Y.  separately.  Bui  X.  can  not  covenant  with 
A.  and  B.  so  as  to  enable  them  to  bring  on  the  same 
covenant,  at  choice,  either  a  joint  action  in  the  names 
of  A.  and  B.,  or  separate  actions  in  the  name  of  A.  or 
of  B. 

The  question  which  arises  in  most  of  the  cases  illus- 

(r)  Bradburn  v.  Hotfield,  14  M.  &  W.  573,  judgment  of  Pakjck,  B. 

(j)  Lush,  Practice,  3rd  ed..  222.  Bradburn  v.  IJolfieM,  14  M.  &  W.  573,  per 
Parke,  B.  It  is  "  fully  established,  I  conceive,  by  [tliej  cases,"  says  Parkk,  B 
'  that  one  and  the  same  covenant  can  not  be  made  both  joint  and  several  witl; 
the  covenantees.  It  may  be  fit,"  he  adds,  "  to  observe  that  a  part  of  Mr.  Pres- 
ton's ex])lanation,  that  by  exjiress  words  a  covenant  may  be  joint  and  several 
with  the  covenantors  or  covenantees,  notwitlistanding  the  interests  are  several, 
is  inaccurately  expr«»s«ed.     It  is  true  only  of  the  covenantors." 


134  PARTIF.S     TO    ACTIONS. 

trating  this  rule  is  not  whether  a  covenant  can  be  treated 
as  at  once  joint  and  several,  but  whether  a  given  cove- 
nant is  to  be  considered  as  a  joint  covenant  or  a  several 
covenant. 

This  question  is  one  of  "  interpretation."  In  inter- 
preting a  covenant,  regard  must  be  had  partly  to  the 
legal  interests  of  the  covenantees,  partly  to  the  language 
employed.  The  general  principles  of  interpretation,  or 
of  the  construction  to  be  put  upon  a  contract  have  thus 
been  summed  up : 

"  The  construction  of  the  contract  ....  depends 
primarily  on  the  language  used,  but  is  a  question  of  in- 
tention to  be  determined  by  considering,  not  only  the 
language,  but  also  the  interests  and  relations  of  the 
parties.  A  contract  will  be  construed  to  be  joint 
[113]  or  several  according  to  the  interests  of  the  parties, 
if  the  words  are  capable  of  that  construction,  or 
even  not  Inconsistent  with  it.  If  the  words  are  ambiguous 
it  will  be  joint,  if  the  interests  are  joint,  and  it  will  be 
several  if  the  interest  be  several.  On  the  other  hand,  if 
the  words  are  unmistakeably  joint,  then,  although  the  in- 
terest be  several,  all  the  parties  must  be  joined  in  the 
action  ;  if  the  words  are  unmistakeably  several,  the  action 
must  be  several,  though  the  interest  be  joint."  (/)  The 
interpretation,  therefore,  of  covenants  or  other  contracts 
is  governed  by  the  following  rules  : 

istly.  Where  the  words  of  a  covenant  are  unmistake- 
ably joint  or  unmistakeably  several;  i.  e.,  where  no 
ambiguity  is  possible,  the  covenant  will  be  taken  to  be 
joint  or  several  in  each  case,  whatever  be  the  interest  of 
the  parties  ;  i.  e.,  all  that  will  be  looked  to  will  be  the 
language  of  the  covenant ;  it  will  be  merely  a  question  of 
construction,  {ti) 

2ndly.  Whenever    the    words    are    ambiguous — i.   e 
capable  of  two  constructions — regard  will  be  had  to  the 
legal  interests  of  the  covenantees.      Where  the  interests 

(/)  Bullen,  Pleadings,  3r(l  ed.,  471,  472  ;  Sorsbie  v.  Park,  12  M.  &  W.  154; 
Bradburn  v.  Rolfield,  14  M.&  W.  559. 

(u)  Kelghlley  v.  Watson,  3  Exch.  721,  judgment  of  PoLLOCK,  C.  B.,  and 
Ibid.,  723,  judgment  of  I'ARKK,  B. 


ACTIONS    ON    CONTRACT.  135 

are  several,  the  covenant  will  be  held  to  be  several ;  where 
joint,  it  will  be  held  to  be  joint. 

For,  "  it  is  impossible  to  say  that  the  parties  may  not, 
if  they  please,  use  joint  words  so  as  to  express  a  joint 
covenant,  and  thereby  to  exclude  a  several  covenant,  and 
that  because  a  covenant  may  relate  to  several  interests, 
it  is  therefore  necessarily  not  to  be  construed  as  a  joint 
covenant.  If  there  be  words  capable  of  two  constructions, 
we  must  look  to  the  interest  of  the  parties  which  they  in- 
tended to  express."  {z) 

"  The  same  covenant  can  not  be  treated  as  joint  or  sev- 
eral at  the  option  of  the  covenantee.  If  a  covenant  be  so 
constructed  as  to  be  ambiguous, — that  is,  so  as  to 
serve  either  the  one  view  or  the  other — then  it  will  [114] 
be  joint  if  the  interest  be  joint ;  it  will  be  several  if 
the  interest  be  several.  On  the  other  hand,  if  it  be  in  its 
terms  unmistakeably  joint,  then  although  the  interest  be 
several,  all  the  parties  must  be  joined  in  the  action.  So 
if  the  covenant  be  made  clearly  several,  the  action  must 
be  several,  although  the  interest  be  joint."  (a) 

What  is  a  joint  and  what  a  several  interest?  The  best 
answer  (d)  appears  to  be,  that  the  interest  of  parties  to  a 
contract  is  joint  where  a  breach  of  it  to  one  is  necessarily 
a  breach  of  it  to  all ;  several,  where  a  breach  of  it  to  one 
is  not  necessarily  a  breach  of  it  to  all. 

If  X.  covenant  with  A.  and  B.  to  pay  a  certain  sum  ot 
money  to  B.,  the  interest  is  joint,  for  the  act  to  be  done 
is  one  act,  and  the  omission  to  pay  the  money  to  B.  is  a 
breach  of  contract  to  both  the  covenantees,  (c)  So  where 
there  is  a  covenant  with  two  persons  to  pay  them  one 
annuity,  the  interest  is  joint,  even  though  half  the  annuity 
is  to  be  received  by  each.  It  would  probably  be  other- 
wise  if  the  covenant  were  to  pay  a  separate  annuity  to 
each   in  which  case  the  interest  would  be  several,  {d) 

(z)  Ibid.,  723,  per  Parke.  15. 

(a\  Kcijililley  v.  Watson,  3  Exch.  721,  per  Pollock,  C.  15.,  conf.  Lane  y. 
DrinVwattr,  I  C.  M.  &  R.612. 

(i>"\  See  for  this  answer,  Lush.,  Practice,  3rd  cd.,  22. 
(<•'   Anderson  v.  Martindale,  I  East,  497. 
(0  ,  Lane  v.  Di ink «-aicr,  2  D.  P.  C.  233. 


136  PARTIES     TO    ACTIONS. 

Where,  on  the  other  hand,  it  was  agreed  b)  a  ship's 
husband  with  the  owners  of  the  ship,  that  alter  her  re- 
turn a  lull  account  should  be  made  of  the  said  ship  and 
her  concerns,  and  the  net  profits  be  divided,  after  deduct- 
ing all  charges,  it  seems  to  have  been  held  that  each  ot 
the  owners  had  a  separate  interest  in  the  making  out  ot 
the  account  bv  which  his  share  was  to  be  ascertained, 
before  an  actual  division  was  made  of  the  profits  of  the 

adventure,  {e) 
[115]  If.  again,  a  person  demises  Blackacre  to  A.  and 

Whiteacre  to  B.,  and  covenants  with  them  and  each 
of  them  that  he  is  lawful  owner  of  the  said  lands,  their 
interests  are  separate.  (/) 


Rule  15. — The  right  to  bring  an  action  on  con- 
tract can  not  be  transferred  or  assigned,  (^g) 

(e)  Owston  v.  Oi^le,  13  East,  53S,  5^0.  Some  writers  of  authority  maintain 
that  a  covenant  can  be  at  once  joint  and  several,  not  only  as  regards  the  cove- 
nantors, but  also  as  regards  the  covenantees,  ^n  this  view  the  question,  whether 
a  covenant  is  joint  or  several,  or  joint  and  several,  as  regards  the  covenantees, 
is  wholly  a  question  of  construction  /.  e.,  of  the  words  of  the  covenant.  This 
view  of  the  law  is  thus  stated,  — 

"  If  there  be  two  or  more  covenantors,  or  two  or  more  covenantees,  the 
covenant  may  either  be  joint  or  several,  or  both  joint  and  several.  Thus,  if 
there  be  two  covenantors,  they  may  bind  themselves  jointly,  or  may  bind  them- 
selves severally,  or  may  bind  themselves  both  jointly  and  severally.  And  if 
there  be  two  or  more  covenantees,  the  covenant  may  be  entered  into  with  them 
lointly  or  with  them  severally,  or  in  both  ways.  When,  however,  a  covenant 
is  entered  into  with  two  or  more,  and  with  each  of  them,  it  will  not  be  consid- 
ered joint  and  several  unless  distinctly  expressed  as  such  by  the  deed  itself ; 
but  will  be  deemed  joint  or  several  according  as  the  interest  of  the  covenantees 
in  the  subject-matter  is  joint  or  several."  Davidson's  Precedents,  3rd  ed., 
109. 

The  view  taken  in  the  text  is  that  of  various  writers  of  reputation,  e.g., 
Bullen,  Pleadings,  3rd  ed.,  471,  and  Lush,  Practice,  3rd  ed.,  22.  The  apparent 
difference  of  view  is  possibly  merely  a  difference  of  language.  The  covenant 
which  one  writer  would  call  a  joint  and  several  covenant,  would,  perhaps,  be 
termed  by  another  two  separate  covenants.  It  is  admitted  on  both  sides  that 
covenants  are,  as  a  rule,  either  joint  or  several,  and  not  as  regards  the  covenan- 
tees  both  joint  and  several. 

{/)  Anderson  v.  Martindale,  i    East,  5or. 

( g^)  This  is  merely  an  applicati(jn  to  actions  ex  contractu  of  the  genera) 
principle,  that  the  right  to  bring  an  action  can  not  be  transferred.     See  Rule  6 


ACTIONS     ON    CONTRACT.  137 

Though  the  interest  in  a  contract  is  constantly  trans- 
ferred from  one  person  to  another,  the  right  to  sue  upon 
a  contract  can  not  be  transferred,  so  as  to  enable  the 
transferee  or  assignee  of  the  interest  in  the  contract  to 
sue  for  a  breach  thereof  in  his  own  name.  He  must  sue 
in  the  name  of  the  assignor  ;  or,  if  he  be  dead,  in  the 
name  of  his  executor  or  administrator,  [h) 

A  debt  is  due  from  X.  to  A.     A.  can  not  transfer 
the  debt  to  B.  so  as  to  enable  B.  to  sue  for  it  in  B.'s    1116] 
name,  {i)  {k) 

It  is  at  once  a  result  and  illustration  of  this  rule,  that 
no  arrangement  between  the  parties  to  a  contract  can 
give  any  one  a  right  to  sue  for  its  breach  who  would  not 
independently  of  the  arrangement  have  any  legal  right  to 
sue.  (/)  It  is,  however,  possible  for  the  several  parties 
to  a  contract  to  agree  among  themselves  that  actions  for 
breach  of  the  contract  shall  be  brought  in  the  name  of 
one  of  them  only.  With  reference  to  an  agreement  of 
this  kind  it  has  been  laid  down  as  follows  : — "  We  think 
that  the  members  of  a  firm  can  not  by  agreement  give  an 
authority  to  any  one  of  them  to  bring  an  action  in  his 
name  against  persons  not  members  of  the  firm.  But 
where  several  parties  create  by  agreement  penalties  to  be 
paid  by  one  of  them  to  the  others,  we  see  no  objection  to 
their  empowering  one  to  sue  for  the  others.  Such  an 
agreement  is  in  effect  an  undertaking  not  to  object  on 
account  of  all  who  ought  otherwise  to  have  been  joined  in 
the  action  not  being  joined."  (;;/) 

Where  two  persons  liave  a  joint  right  of  action,  e.  g., 
where  A.  and  B.  have  a  right  of  action  against  X.,  one 
can  not  assign  to  the  other  his  share  in  the  right  of  action 
so  as  to  enable  such  assignee  to  sue  alone.  Where  X. 
covenanted  with  A.  and  B.,  it  was  held  tiiat  B.  cou'd  not, 

(//)  Chit.,  I'learling,  7th  ed.,  17. 

(/')  Jones  V.  Carter,  15  L.  J.  q6,  Q.  B.  ;  3  Q.  H.  134.  See  furllier.  ante,  as  to 
the  effect  of  assij^nment  on  tlie  right  of  set-ofT. 

{k)  Hut  see  as  to  assignment  of  a  debt  by  agreement  between  ihe  assignor, 
dclitor,  and  assignee,  post. 

(I)  Ilybart  v   Parker.  4  C.  B..  N.  S..  209  ;  27  L.  J.  I20,  C.  P. 

(w)  Rad-nhlrst  v.  Bates,  3  Bing.  470,  per  CURIAM. 


138  PARTIES     TO    ACTIONS. 

by  resigning  his  rights  to  A.,  enable  A.  to  sue  alone  for  a 
breach  of  covenant.  («) 

"  The  liability  to  be  sued  jointly  by  the  two  covenan- 
tees .  .  .  might  perhaps  be  sufficient  to  sustain  the 
present  action  if  it  were  not  for  the  rule  .  .  .  which 
prohibits  the  assignment  of  the  right  to  enforce 
[117J  such  a  liability,  inasmuch  as  the  indenture  of  dis- 
claimer sufficiently  shows  the  intention  on  the  part 
of  [B.]  and  the  plaintiff,  that  the  plaintiff  shall  have  the  right 
to  sue,  which  before  the  execution  of  that  deed  might  have 
been  exercised  by  the  plaintiff  and  [B].  But  there  is  no 
doubt  that  such  a  right  is  by  law  not  assignable.  The 
defendant,  indeed,  does  in  terms  covenant  with  the  plain- 
tiff and  [B],  their  executors,  administrators,  and  assigns, 
but  the  rule  which  prohibits  the  assignment  of  a  right  to 
sue  on  a  covenant  is  not  one  which  can  be  dispensed  with 
by  the  agreement  of  the  parties,  and  it  applies  to  covenants 
expressed  to  be  with  assigns  as  well  as  to  others."  {0) 

Exception   i. — Contracts  made  assignable  by  statute.  (/) 

In  the  case  of  some  kind  of  contracts  an  assignee  is 
empowered  by  statute  to  sue  upon  them  in  his  own  name. 
Such  are  promissory  notes,  {q)  bills  of  lading,  (r)  bail 
bonds,  {s)  replevin  bonds,  (/)  administration  bonds,  {u)  life 
and  marine  policies  of  insurance,  {x)  choses  in  action 
belonging  to  companies  within  the  Companies  Act, 
1862.  {y} 

(«)  Wetherell  v.  Langston,  i  Exch.  634. 

{0)  Wetherell  v.  Langston,  i  Exch.  644,  645,  per  Curiam  ;  but  conf.  Lin- 
wood  V.  Squire,  5  Ex.  235. 

(/)  By  "assignable"  is,  of  course,  meant,  in  treating  of  the  exceptions  to 
the  general  rule,  assignable  so  as  to  enable  the  assignee  to  sue  in  his  own 
name. 

(q)  4  Anne,  c.  9,  s.  i. 

(r)  i3  &  19  Vict.  c.  rii,  s    I. 

{s)  4  Anne,  c.  16,  s.  20. 

{t)  II  Geo.  II.,  c.  19,  s.  23.  But  assignment  of  these  bonds  is  not  now  ne- 
cessary.    See  19  &  20  Vict.  c.  108,  s.  63-66  and  70. 

(«)  20  &  21  Vict.  c.  77,  s.  8r,  compared  with  21  &  22  Vict.  c.  95,  3.  15.  See 
Sandrey  v.  Michell,  3  B.  &  .S.  405  ;  32  L.  J.  100,  Q.  B. 

(x)  30  &  3]  Vict.  c.  144  ;  31  &  32  Vict.  c.  86. 

(y)  25  &  26  Vict.  c.  89,  s.  157. 


ACTIONS    ON    CONTRACT.  139 

Exception  2.— Contracts  or  choses  in  action  as5igiiable  by 
custom. 

Such  are  bills  of  exchange,  checks,  &c. 

Exception  3. — Assignment  of  a  debt  by  agreement  of  all  the 
parties. 

"The  assignment  of  a  debt  may  be  effected  in  [118] 
law  so  as  to  give  a  right  of  action  to  the  assignee 
by  means  of  a  binding  agreement  between  the  assignor, 
the  assignee,  and  the  debtor,  to  the  effect  that  the  debt 
shall  be  discharged  as  against  the  assignor  or  original 
creditor,  and  a  new  liability  created  for  the  debt  in  favor 
of  the  assignee."  {a) 

Suppose  X.  owes  M.  £100,  and  M.  owes  A.  ;:^ioo,  and 
the  three  meet,  and  it  is  agreed  between  them  that  X. 
shall  pay  A.  the  iJ"ioo.  M's  debt  is  extinguished,  and  A. 
may  recover  the  sum  against  X.  {b) 

In  a  sense,  such  a  transaction  involves  the  assignment 
o.'  a  chose  in  action,  since  the  claim  of  M.  against  X.  is 
transferred  to  A.  But  there  is  in  reality  no  exception 
to  the  general  rule  ;  for  A.  sues  X.,  not  on  the  original 
contract  between  M.  and  X.,  but  on  a  new  contract 
between  A.  and  X.,  the  consideration  for  which  is  the 
extinction  of  A.'s  claim  against  M.,  i.  e.,  of  M's  debt  to  A. 
There  must,  therefore,  be  an  agreement  between  all  the 
three  parties,  {c)  The  intermediate  debt,  i.  e.,  the  debt 
due  from  M.,  the  assignor,  to  A.,  the  so-called  assignee, 
must  be  extinguished,  {d)  For  though  where  by  an  agree- 
ment between  the  three  parties,  A.  undertakes  to  look 
to  X.,  and  not  to  M.,  his  original  debtor,  A.  may  main- 
tain an  action  against  X.  on  this  agreement,  yet,  in  order- 
to  give  A.  tne  right  to  such  an  action,  there  must  be  an 
extinguishment  of  the  intermediate  dcl)t,  i.  e.,  the  debt 
due  from  M.  to  A.  {c)     There  must  also,  at  *nc  time  of  the 

(a)  Leake,  Contracts,  607,  608. 
{(>)  Tatlock  V.  Harris,  3  T,  R.  180,  per  Hui.l.KR,  J. 
(f)  Price  V.  Easton,  4  15.  &  Ad.  433. 

(</)  Cuxon  V.  Ciiadley,  3  B.  &  C.  591  ;  Cochrane  v.  Green,  9  C.  H.,  N.  S., 
448  ;  30  L.  J.  97.  C.  I'. 

it)  Wharlon  v.  Walker,  4  H.  &  C  165.  judfjincnt  of  Hayi.f.Y,  J 


140  PARTIES     TO     ACTIONS. 

assif^nmcnt,  be  a  debt  actually  due  to  M.,  the  assignor, 
from  X.,  the  ultimate  debtor.  (/)  The  whole  transaction 
IS  in  effect  the  making  of  a  new  contract,  and  the  right 

of  the  assignee  depends  in  reality,  not  upon  the 
[119]    assignment  of  the  assignor's  claim,  but  upon  a  new 

agreement  entered  into  by  all  the  three  persons 
concerned  in  the  transaction,  {g) 

Exception  4. — Covenants  annexed  to,  or  running  with,  es- 
tates in  land.  (//) 

Covenants  of  a  certain  class  which  specially  concern 
or  touch  the  land  may  be  annexed  to  estates  in  land,  so 
that  the  benefit  or  the  burden  of  the  covenants  passes  to 
an  assignee  of  the  estate.  These  covenants  are  then  said 
to  run  with  the  land,  {k) 

The  peculiarity  of  covenants  which  run  with  the  land 
is,  that  the  benefit  of  them,  or  the  obligation  to  perform 
them,  passes  from  the  person  with  or  by  whom  they  were 
made  to  the  person  interested  in  the  estate  to  which  they 
refer.  The  meaning  of  this  is  seen  by  comparing  cove- 
nants which  run  with  the  land  with  covenants  which  do 
not  pass  or  run  with  the  things  to  which  they  refer. 

Suppose  X.  sells  goods  to  A.,  and  covenants  for  a 
good  title,  and  A.  sells  them  again  to  B.,  A.,  or  his  repre- 
sentatives, can  sue  X.,  or  his  representatives,  for  a  breach 
of  the  covenant ;  but  B.  can  not  sue  X.,  or  his  represen 
tatives,  for  such  a  breach.  B.'s  only  remedy  (if  any) 
against  X.  is  an  action  in  A.'s  name.  Suppose,  again, 
that  A.  lets  goods  to  X.,  and  that  X.  covenants  for  him- 
self and  his  assigns  to  return  the  goods  at  the  end  of  the 
term  in  as  good  condition  as  they  were  let  to  him,  and 
that  X.  then  sells  all  his  interest  in  the  goods  to  Y.,  A 

(/)  Fairlie  v.  Denton,  8  B.  &  C.  395. 

(g)  Wilson  V.  Coupland,  5  B.  &  Aid.  228  ;  Hudson  v.  Bilton,  6  E.  &  B.  565; 
26  L.  J.  27,  Q.  B.     Leake,  Contracts,  609. 

(A)  See  especially  Leake,  Contracts,  615-623;  Smith,  Landlord  and  Tenant, 
282  ;  and  Spencer's  Case,  1  Smith.  L.  C,  6th  ed.,  45. 

{k)  Leake,  Contracts,  615.  Contracts  not  under  seal  never  run  with  the 
land.  Bickford  v.  Parson,  5  C.  B.  918  ;  17  C.  J.  192,  L.  P.  ;  Bryd<jes  v.  Lewis, 
1  Q.  B  603  ;  Sianden  v.  Chrismas,  10  Q.  B.  135. 


ACTIONS     ON    CONTRACT.  141 

can,  if  the  goods  are  not  returned  in  a  good  condition, 
sue  X.  (or  his  representatives)  for  a  breach  of  cove- 
nant, but  he  can  not  sue  Y.,  or  his  representatives, 
for  such  breach,  (in)  In  these  and  the  like  instances  [120] 
the  contract  is  looked  upon  as  purely  personal.  It 
benefits  the  person  with  whom  it  is  made,  or  his  repre- 
sentatives, and  binds  the  contractor,  or  his  representatives ; 
but  it  neither  benefits  nor  binds  the  person  to  whom  the 
property  to  which  the  covenant  relates  passes. 

But,  suppose  that  X.  sells  land  to  A.,  and  covenants 
for  title,  and  that  A.  sells  the  land  again  to  B.,  B.  will 
have  a  right  of  action  against  X.,  or  his  representatives, 
for  a  breach  of  X.'s  covenant.  Suppose,  again,  that  A. 
leases  land  to  X.,  and  that  X.  covenants  to  repair,  and 
afterwards  assigns  his  term  to  Y.,  who  breaks  the  cove- 
nant, A.  has  a  right  of  action  against  Y.  {n)  These  cove- 
nants, therefore,  run  with  the  land. 

Covenants  affecting  land,  when  made  between  persons 
who  do  not  stand  in  the  relation  of  lessor  and  lessee,  are 
governed  wholly  by  the  common  law,  and  are  covenants 
either  by  the  owner  of  land,  i.  e.,  imposing  a  burden  upon 
him,  or  covenants  with  the  owner  of  land,  i.  e.,  conferring 
a  benefit  upon  him. 

Covenants  by  owners  of  land  do  not  run  with  the  land  ; 
i.  e.,  the  burden  of  such  covenants  does  not  pass  with  the 
estate  to  the  assignee.  {0)  If  (that  is  to  say),  X.,  on  pur- 
chasing an  estate,  were  to  covenant  as  owner  with  the 
vendor,  e.  g.,  that  the  land  should  never  be  built  upon, 
such  a  covenant  would  not  bind  the  successive  owners  of 
the  estate,  i.  e.,  would  not  run  with  the  land. 

(w)  Spencer's  Case,  i  Smith,  L.  C.,6th  ed.,  47  ;  Spluit  v.  Bowles,  10  Ea-t, 
279 ;  Gorton  v.  Gregory,  3  15.  &  S.  go  ;  31  L.  J.  302,  Q.  B. 

(«)  Thoufjli  he  still  retains  a  right  of  action  against  X.  for  a  breach  of  hi-; 
covenants.  Wadliam  v.  Marlow,  8  East,  314,  n.  ;  Walker's  Case,  2  Coke,  21  ; 
I  Wms.  Saund.  240,  241  ;  2  Ibid,  302,  note  5. 

(0)  I  Smith,  L.  C,  6th  ed.,  65-77  ;  Keppel  v.  Hailey,  2  M.  &  K.  517.  In  re 
Drew's  Estate,  L.  R.  2,  E.\.  206  ;  35  L.  J.  845,  Ch.  ;  Riciiard.s  v.  Harper,  L.  R. 
I,  I^x.  I99,  205.  'Ihough  the  weight  of  autliority  is  in  favor  of  the  view  of  the 
law  expKVised  in  the  text.  Lord  .Sr.  Lkonards  has  expressed  a  decided  opinion 
that  covenants  by  the  owners  of  land  may  run  with  the  land.  The  question 
whether  such  covenants  may  not  run  with  the  land  must,  therefore,  lie  cnn- 
Ridered  doubtful.     See  Sugden,  Vendors  and  Puriha.sers,  14th  ed..  453,  5S5,  593 


[42  PARTIHS     TO    ACTIONS. 

[i2i]  Covenants  with  owners,  ?'.<?.,  for  the  benefit  oi 

o\Aners  of  land  (provided,  of  course,  that  they  are 
of  a  nature  to  run  with  the  land),  pass  to  each  successive 
assignee  of  the  land,  i.  e.,  from  owner  to  owner.  Thus, 
suppose  an}'  one  covenant  (/)  with  the  owner  of  land  to 
supply  pure  water  for  cattle  on  the  land,  such  a  covenant 
will  run  with  the  land,  e.  g.,  if  owner  A.  sell  his  land  to 
B.,  B.  has  a  right  to  the  benefit  of  the  covenant,  and  may 
sue  for  a  breach  of  it. 

Covenants  which  affect  land  may  be  made  between 
persons  who  stand  in  the  relation  of  lessor  and  lessee. 

The  rules  as  to  such  covenants  depend  partly  on 
the  common  law,  and  partly  on  the  statute  32  Hen.  VIII. 
c.  34. 

At  common  law,  lessor  and  lessee  were  each  bound  by 
their  covenants  to  each  other,  and  it  the  covenants 
"  touched  the  land," — e.  g.,  were  covenants  for  title, 
covenants  to  repair,  and  so  forth, — the  assignee  of  the 
lessee  could  sue  the  lessor,  and  could,  on  the  other  hand, 
be  sued  by  the  lessor.  If,  for  example,  A.  leased  land 
to  B.,  covenanting  for  renewal,  and  B.  assigned  the 
lease  to  C,  C.  could  sue  A.  for  any  breach  of  covenant, 
and,  on  the  other  hand,  if  B.  had  covenanted  to  repair. 
A.  could  sue  C.  for  a  breach  of  such  covenant  on  C.'s 
part. 

But  at  common  law,  covenants,  though  touching  the 
land,  neither  bound  nor  benefitted  the  assignee  of  the 
lessor.  Suppose  A.  leased  to  B.,  and  covenanted  fo. 
renewal,  iq)  wliilst  B.  covenanted  to  repair,  and  A.  then 
assigned  his  estate  in  the  land  to  C,  B.  could  not  sue  C. 
for  the  breach  of  the  one  covenant,  nor  C.  sue  B.  for  the 
breach  of  the  other. 

The  original  parties  to  the  lease,  and  their  representa- 
tives, might,  it  is  true,  sue  one  another,  i.  e.,  B.  might 
sue  A.,  or  A.'s  personal  representatives,  and  A. 
[122]  might  sue  B.,  or  B.'s  personal  representatives. 
The  result  was,  that  the  person  who  had  the  right 

(/)  Sharp  V.  Waterhouse,  7  E.  &.  B.  816  ;  27  L.  J.  70,  Q.  B. 

(f)  See  Roe  d.  Bamford  v.  Hayley,  12  East,  46S,  per  Ellenborough,  C.  J 


ACTIONS     ON    CONTRACT.  143 

to  sue,  or  the  liability  to  be  sued,  was  not  the  person 
interested  in  the  land.  {/) 

The  statute  32  Hen.  VIII.  c.  34  (in  order  to  remedy 
this  defect  of  the  common  law),  gave  the  assignee  of  the 
reversion  the  same  remedy  against  the  lessee  and  his 
assignee  {/)  as  the  original  landlord  would  have  had 
against  the  original  tenant,  and  the  original  tenant  and 
his  assignees  the  same  remedy  against  the  reversioner 
and  his  assignees  as  such  tenant  would  have  had  against 
the  original  landlord,  {g)  Thus,  A.  leases  to  B.,  and  then 
assigns  his  reversion  to  C. ;  C.  can  under  the  statute  be 
sued  by,  and  sue  B.  on  all  covenants  which  touch  the 
land,  and  further,  if  B.  assigns  to  D.,  C.  can  be  sued  by, 
and  can  sue,  D. 

An  assignee,  in  order  to  obtain  the  benefit,  or 
incur  the  burdens,  of  covenants  which  run  with  the    [123] 
land,  must  take  the  same  estate  as  that  to  which 
the  covenants  are  annexed.     Thus,  though  the  covenants 
pass  to  an  assignee  of  a  lessee,  they  do  not  pass  to  the 
under-lessee  of  the  lessee,  {h)     If  A.  leases  to  B.  for  twenty 

{e)  Smith,  Landlord  and  Tenant,  2S3. 

{/)  The  term  "assignee"  has,  under  32  Hen.  VIII.  3,  34,  received  a  very 
extended  interpretation. 

It  includes,  fc  instance,  a  grantee,  or  devisee,  or  heir;  or  if  the  reversion 
is  a  term  of  years,  the  executor  or  administrator  of  the  reversioner  (Derisley 
V.  Custance,  4  T.  R.  75.  Leake,  Contracts,  625)  ;  the  executor  or  administratoi 
of  an  assignee  (Spencer's  Case,  i  Smith,  L.  C,  6th  ed.,  49)  ;  the  assignee  of  an 
assignee,  or  the  assignee  of  the  execu^tor  or  administrator  of  an  assignee  (Spen- 
cer's Case,  I  Smith,  L.  C,  6th  ed.,  49) ;  the  trustee  in  bankruptcy;  the  re- 
mainderman under  a  lease  made  under  a  power  (Isherwood  v.  Oldknow,  3  M 
&  S.  382)  ;  the  assignee  of  part  of  the  n-version.  e.  ^.,  for  years  (Coke,  r  Inst. 
215  a.  ;  Wright  v.  Bnrroughes,  3  C.  B.  685  (Ex.  Ch.) )  ;  the  assignee  of  the 
reversion  in  part  of  the  premises  as  far  as  the  covenants  affect  his  pait  of  ilic 
land  (Twynam  v.  Pickard,  2  B.  &  Aid.  105);  the  assignee  of  the  term  in  part 
of  the  demised  premises, — i.  e.,  the  assignee  of  part  of  the  premises  from  tlie 
lessee  (I'almer  v.  Edwards,  i  Doug.  183.  .See  Nerval  v.  Pa-icoe,  34  L.  J.  82, 
Ch.  See  especially,  Twynam  v.  Pickard,  2  B.  &  Aid.  no,  in,  as  to  the 
meaning  of  assignee  being  the  same  in  both  sections  of  the  Act) ;  a  mortgagee 
(Williams  v.  Bosanquet,  I  B.  &  B.  238);  tlie  grantee  of  the  reversion  in  copy- 
hold lands  (Glover  v.  Cope,  3  Lev.  326)  ;  and  generally  persons  who,  though 
they  be  not  sirictly  assignees  of  a  reversion,  virtually  stand  in  that  position 
(.Martyn  v.  Williams,  i  II.  &  N.  817  ;  26  L.  J.  117,  Ex.). 

(g)  Smith,  Landlord  and  Tenant,  285. 

(h)  See  8  v^  9  Vict.  c.  106,  s.  9,  by  which,  when  the  reversion  on  a  lease  is 
gone,  the  nrxl  estate  is  deemed  a  reversion  for  the  purpose   of  preserving  the 


44  PARTIES     TO    ACTIONS. 

years,  and  B.  assigns  his  lease  to  C,  C.  is  bound  by  B/& 
covenants  (if  tliey  touch  the  huid),  with  A.  But  suppose 
B.  underlets  to  C, — c.  j^.,  for  nineteen  years, — C.  is  not 
bound  by  B.'s  covenants  with  A.,  (/)  nor  can  C.  take  the 
benefit  of  covenants  by  A.  with  B. 

Covenants  which  run  with  the  land  must  have  the 
following  characteristics  : 

1st.  Such  covenants  must  be  made  with  a  covenantee 
who  has  an  interest  in  the  land  to  Avhich  they  refer,  (k) 

Suppose  that  A.  is  owner  of  Blackacre,  and  X.  cove- 
nants with  A.  to  keep  certain  buildings  on  Blackacre 
in  repair,  such  a  covenant  runs  with  the  land  ;  /.  e.,  passes 
to  the  successive  assignees  of  Blackacre, — e.  g.,  persons 
who  purchase  it.  Suppose,  on  the  other  hand,  A.  is  not 
owner  of  Blackacre,  but  that  it  belongs  to  B.,  and  X. 
covenants  with  A.  as  in  the  former  case.  Such  a  cove- 
nant does  not  run  with  the  land.  Neither  B.  nor  the 
assignees  of  B.  can  sue  upon  it,  and  an  action  for  its  breach 
must  be  brought,  if  at  all,  by  A.,  or  the  representatives  of 
A. 

A  mortgagor  and  a  mortagee  joined  in  a  lease  of  the 
mortgaged  premises,  and  the  covenants  by  the  lessee 
were  made  with  the  mortgagor  only.  It  was  held  that  the 
assignee  of  the  mortgagee,  who,  it  must  be  remembered, 
had  the  legal  (/)  interest  in  the  land,  could  not  sue 
[124]  upon  them  ;  (;;/)  but  that  the  action  must  be  brought 
by  the  mortgagor,  (it)  or  his  representatives.  For 
rhe  same  reason,  where  a  lease  was  made  by  a  mortgagor, 
in  which  a  previous  mortgage  was  recited,  the  covenants 
jvere  held  not  to  be  assignable  ;  that  is,  being  covenants 
with  the  mortgagor,  who  had  no  legal  interest  in  the 
land,  they  were  not  covenants  annexed  to  the  land,  01 
running  with  it.  {0) 

incidents  and  obli;;ations  attaching  to  such  reversion.     As  to   the  lial;ility  of 
essor  and  lessee,  and  the  effect  of  assignment,  see  Chapter  XI. 

{{)  Holford  V.  Hatch,  r  Doug.  183  :  Earl  of  Derby  v.  Taylor,  i  East,  502. 

{k)  Spencer's  Case,  l  .Smith,  L.  C,  6th  ed.,  50. 

(/)  See  Rule  4. 

{m)  Webb  v.  Russell,  3  T.  R.  393. 

(«)  Stokes  V.  Russell,  3  T.  R.  678. 

(o)  Pargeter  v.  Harris,  7  Q.  H.  70*. 


ACTIONS     UN    CONTRACT.  145 

Thousfh  the  covenantee  must  have  an  interest  in  the 
land,  the  covenantor  need  not  have  any,  (/)  Thus,  a 
covenant  by  X.  with  A.,  the  owner  of  Blackacre,  to  keep 
m  repair  certain  buildings  thereon,  will  run  with  the  land, 
that  is,  pass  to  the  successive  owners  of  it,  even  though 
X.  has  no  interest  in  the  land  whatever. 

2ndly.  Such  covenants  must  concern  or  "  touch  "  the 
land. 

It  IS  not  every  covenant  with  the  owner  of  land  which 
runs  with  the  land.  Suppose,  for  example,  A.  is  the 
owner  of  land  which  he  has  bought  from  X.  and  X.  has 
entered  into  two  covenants  with  him  ;  the  one  for  title, 
and  the  other  to  repay  certain  money  beyond  the  pur- 
chase money  for  the  land,  advanced  him  by  A.  The  first 
covenant  affects  or  touches  the  land,  and  therefore,  if  A. 
sells  the  land  to  B.,  the  covenant  runs  with  the  land  ;  i.  e., 
B.,  the  assignee,  acquires  a  right  to  sue  X.  for  its  breach. 

The  second  covenant  is  one  only  affecting  A.  personally. 
It  m  no  way  touches  or  concerns  A.'s  estate  in  the  land.  It 
is  what  is  called  a  covenant  in  gross,  or,  as  it  is  sometimes 
termed,  a  collateral  covenant.  It  therefore  does  not  run 
with  the  land,  nor  can  B.  sue  X.  for  its  breach,  {g) 

A  covenant    which    touches   the  land,    as   con-    [125] 
trasted   with  a   collateral  covenant,  is   one  which 
affects  the  nature,  quality,  or  value  of  the  land,  or  rather 
of  the  estate  in  the  land,  or  the  mode  of  enjoying  it.  (r) 

"  In  order  to  bind  the  assignee,  the  covenant  must 
either  affect  the  land  during  the  term,  such  as  th  se 
which  regard  the  mode  of  occupation,  or  it  must  be  such 
as  per  se,  and  not  merely  from  collateral  circumstances, 
affects  the  value  of  the  land  at  the  end  of  the  term.  Cove- 
nants to  restrain  the  exercise  of  particular  trades  in  houses 
fall  within  the  first  class;  they  affect  the  mode  in  which 
the   property    is  to  be  enjoyed    during  the  term.     The 

(/>)  Spencer's  Case,  i  Smith,  L.  C,  6lh  ed.,  63. 

iq)  The  same  principle  applies  where  the  relation  of  lessor  and  lessee  exists, 
and  it  has  been  long  held  that  the  statute  (32  Hen.  VIII.  c.  34)  does  not  apply 
to  costs  which  do  not  touch  or  concern  the  land.  Smith's  Landlord  and 
Tenant,  286,  and  Spencer's  Case,  Smith,  L.  C,  6th  ed.,  51. 

(r)  Mayor  of  Conpleton  v.   I'attison,  10  East,  135-137. 
10 


146  PARTIES     TO    ACTIONS. 

case  of  Bally  v.  Wells  {s)  may  rank  under  the  second 
class,  for  if  the  lessee  or  a  stranger  were  in  the  actual 
occupation  of  the  tithes  during  the  term,  the  evidence  of 
the  lessor's  right  to  them  would  be  continued ;  and  there- 
fore the  estate  of  the  reversioner  would  be  better  at  the 
end  of  the  term."  (/") 

Though  the  general  distinction  between  covenants 
which  touch  the  land  and  covenants  which  do  not  touch 
the  land,  or  collateral  covenants,  is  clearl)  marked,  it  is 
often  a  question  under  which  head  a  given  covenant  falls. 
Thus  in  a  case  already  referred  to,  {ti)  a  covenant  by  a 
lessee  of  tithes  not  to  let  any  of  the  farmers  of  the  parish 
have  any  part  of  the  tithes,  was  held  to  run  with  the 
tithes,  because  it  affected  the  estate.  A  C(.)venant,  on  the 
other  hand,  by  the  lessee  of  land,  on  which  he  was  to  erect 
a  mill,  not  to  hire  persons  to  work  at  the  mill  who  be- 
longed to  another  parish,  was  held  not  to  touch  the  thing 

demised,  as  not  affecting  the  land  itself  or  the  mode 
[126]    of  occupying  it.  (w)      A  covenant  to  leave  land  at 

the  end  of  the  term  stocked  with  game  has  been 
held  to  touch  the  land,  {x)  since  "  no  covenant  more  closely 
touches  or  concerns  the  land  than  a  covenant  to  keep  on 
the  land  a  certain  quantity  of  game.  In  order  to  keep  up 
the  game,  some  one  must  be  always  on  the  land,  and  the 
observance  of  the  covenant  can  be  a  benefit  to  no  one  but 
the  owner  of  the  land  ;  it  is  more  intimately  connected  with 
the  land  than  a  covenant  to  reside,  which  has  been  held 
to  run  with  the  land."  {y)  "  It  is  a  covenant  which  affects 
the  value  of  an  estate,  and  is  valuable  to  the  owner  on 
that  ground.  It  affects  the  enjoyment  of  the  estate  ;  it 
relates  to  a  matter  to  be  done  on  the  land,  and  touches  the 

{s)  3  Wils.  25. 

(/)  Mayor  of  Congleton  v.  Pattison,  10  East,  137,  138,  judgment  of  Bayley, 
J.  The  expressions  here  used  apply  directly  to  cases  where  the  relation  of 
lessor  and  lessee  exists.  But  they  apply  equally  in  principle  to  covenants  with 
the  owner  of  land  by  a  person  not  a  lessee.  This  remark  ai)plies  to  o'.hei 
quotations. 

(«)  Bally  V.  Wells,  3  Wils.  25. 

(w)  Mayor  of  Congleton  v.  Pattison,  10  East,  130. 

{x)  Hooper  v.  Clark,  L.  R.  2,  Q.  B.  200 ;  36  L.  J.  79,  Q.  fi. 

{y)  Ibid.,  203,  judgment  of  Blackburn.  J. 


ACTIONS     ON    CONTRACT.  147 

thing  demised  ;  "  {£)  and  is  on  these  grounds  distinguished 
from  a  covenant  to  re-deliver  sheep  or  cattle  which  have 
been  hired,  in  a  good  condition,  which  being  a  cove- 
nant relating  to  goods  only,  does  not  run  with  the 
land,  {a) 

A  proviso  in  a  lease  for  re-entry  in  case  the  lessee,  or 
any  tenant,  or  occupier  of  the  premises  demised,  should 
be  lawfully  convicted  of  any  offense  against  the  game 
laws,  has  been  held,  though  with  some  hesitation,  not  to 
touch  the  land  {b)  on  the  ground  that  it  seems  "  to  be 
purely  collateral."  "  The  question,"  it  was  said  in  this 
case,  "  appears  to  be  this — Does  the  condition  touch  the 
thing  demised  ?  If  it  does  not,  it  matters  nothing  that 
it  touches  the  personal  character  of  the  occupier.  Now 
here  the  act  done  had  no  reference  whatever  to  the  land 
demised,  but  only  to  the  conduct  of  the  person  who  hap- 
pened to  be  in  occupation  of  the  premises.  But  .  .  . 
the  mere  circumstance  of  the  offense  being  committed  by 
the  person  in*  occupation  does  not  refer  enough  to  the 
land  itself  to  enable  the  assignee  of  the  landlord  to 
enforce  a  forfeiture  for  the  breach  of  this  condition.  [127] 
No  case  has  gone  to  such  a  length,  and  the  reason 
of  the  thing  seems  to  be  adverse  to  the  plaintiff's  conten- 
tion." {c) 

The  agreement  to  keep  the  land  stocked  with  game  {d') 
touched  the  land  because  it  affected  the  enjoyment  of  the 
estate  ;  the  agreement  for  re-entry  in  case  the  occupier 
was  convicted  of  an  offense  against  the  game  laws  {e)  was 
held  not  to  touch  the  land,  because  it  did  not  affect  the 
enjoyment  or  value  of  the  estate,  but  had  simply  reference 
to  the  conduct  of  the  lessee  or  occupier.  (/) 

(z)  Il)id.,  202,  judgment  of  Cockbukn,  C.  J. 

(a)  Spencer's  Case,  I  Smith,  L.  C,  6lli  ed.,  47. 

{b)  Stevens  v.  Copp,  L.  R.  4,  Ex.  20. 

(c)  Stevens  v.  Copp,  L.  R.  4,  Ex.  26,  judgment  of  Clkashy,  B. 

\d)  Hooper  v.  Clark,  L.  R.  2.  Q.  B.  200 ;  36  L.  J.  79,  Q.  E. 

(e)  Stevens  v.  Copp,  L.  R.  4,  Ex.  20. 

(/")  The  following  are  example-;  of  covenants  which  touch  tlic  land,  viz; — 
Covenants  to  pay  rent  (.Smith,  Landlord  and  Tenant,  2S7)  ;  to  repair  (Spencer's 
Case,  I  .Smith,  L.  C,  6th  ed  ,  45  ;  Windsor's  Case,  5  Coke,  24) ;  for  quiet  en- 
ioyment  (Cnmplxll  v.  Lewis,  3  }}.  &  .Md.  2<)2)  ;  for  cultivation  of  land   in    par 


148  PARTIES     TO     ACTIONS. 

Covenants  may  run  with,  or  be  annexed  to,  different 
estates  in  land. 

The  bcnclit,  though  not  the  burden,  of  such  covenants 
can  bo  annexed  to  the  fee.  {g) 

The  benefit  and  the  burden  of  such  covenants 
[128]  can  be  annexed  both  to  the  term  and  to  the  rever- 
sion, and  such  covenants  can  also  be  annexed  to 
incorporeal  hereditaments.  Thus  a  covenant  in  a  lease 
of  tithes  was  held  to  run  with  the  lease  of  the  tithes,  and 
bind  the  assignee.  (//)  So  a  covenant  in  a  lease  of  tolls 
will  run  with  the  tolls  demised  by  the  lease ;  (/)  and  can 
be  annexed  to  the  grant  of  a  license,  e.  g.,  to  dig  for  min- 
erals, ik) 

But  a  covenant  can  not  be  annexed  to  an  equitable 
estate,  (/)  or  to  a  mere  rent  issuing  out  of  land,  iin) 

Exception  5. — Assignment  by  marriage,  (ti)  bankruptcy,  {0) 
and  death.  (/) 

ticular  manner  (Cockson  v.  Cock,  Cro.  Jac.  125);  for  renewal  (Roe  d.  Bamford 
V.  Hayley,  12  East,  464  ;  Williams  v.  Earl,  L.  R.  3,  Q.  B.  739) ;  not  to  carry  on 
particular  trade  (Hodgson  v.  Coppard,  30  L.  J.  20,  Ch.) ;  to  keep  up  sea-walls 
(Morland  v.  Cook,  L.  R.  6  Eq.  652)  ;  to  leave  land  stocked  with  game  (Hooper 
V.  Clark,  L.  R.  2,  Q.  B.  200)  ;  to  supply  premises  with  water  (Jourdaine  v.  Wil- 
son, 4  B.  &  Aid.  266) ;  to  supply  water  for  cattle  on  land  (Sharp  v.  Walerhouse, 
7  E.  &  B.  816;  27  L.  J.  70,  Q.  B.). 

The  following  are  examples  of  covenants  which  do  not  touch  the  land,  viz  : 
— Covenants  as  to  mere  utensils  used  on  land  (Williams  v.  Earl,  L.  R.  3,  Q.  B. 
739  I  37  L.  J.  231,  Q.  B.)  for  re-entry  in  case  lessee  is  convicted  of  oftense 
against  game  laws  (Stevens  v.  Copp,  L.  R.  4,  Ex.  20)  ;  not  to  employ  laborers 
out  of  other  parishes  (Mayor  of  Congleton  v.  Pattison,  10  East,  130).  See 
further  as  to  distinction  between  covenants  having  reference  to  something 
which  is  in  existence  at  the  time,  and  covenants  which  refer  to  something  which 
is  not  in  existence  ^Spencer's  Case,  i  Smith,  L.  C,  6th  ed.,  46  ;  Easterby  v. 
Sampson,  9  B.  &  C.  505  ;  Wilson  v.  Hart,  L.  R.  i,  Ch.  463  ;  36  L.  J.  569,  Ch. 
MinshuU  v.  Oakes,  2  H.  &  N.  793  ;  27  L.  J.  194,  Ex.). 

( g)  See  ante. ' 

{h)  Bally  v.  Wells,  3  Wils.  25. 

(i)  Earl  of  Egremont  v.  Keene,  2  Jones  (Exch.  Ireland),  307. 

(i)  Martyn  v.  Williams,  I  H.  &  N.  817;  26  L.  J.  117,  Ex.;  Muskett  v. 
Hill,  5  B.  N.  C.  694,  708. 

(/)  Pargeter  v.  Harris,  7  Q.  B.  708. 

{m\  Milnes  v.  Branch,  5  M.  &  S.  411  ;  and  see  Williams  v.  Hayward,  I  E.  & 
E.  1040  ;  28  L.  T.  374,  Q.  B. ;  Leake,  Contracts,  623,  624. 

(«)  Chapter  VHI. 

{p)  Chapter  IX. 

(/)  Chapter  X. 


ACTIONS    ON    CONTRACT.  149 

Rule  16. — The  right  of  action  on  a  contract 
made  with  several  persons  jointly  passes  on  the  death 
of  each  to  the  survivors,  and  on  the  death  of  the  last 
to  his  representatives.* 

A  contract  is  made  with  A.,  B.,  and  C.  The  right  to 
sue  upon  the  contract  passes  on  the  death  of  C,  to  A.  and 
B. ;  on  the  subsequent  death  of  B.,  to  A. ;  and  on  the 
death  of  A.  (provided  the  right  to  sue  survives,)  {q)  to  A.'s 
executor  or  administrator.  The  representatives,  e.  g.,  of 
C.  can  neither  sue  upon  the  contract  themselves  nor  join 
in  suing  with  A.  and  B. 

Exception. — Covenants  with  tenants  in  common. 

If  there  is  a  joint  demise  by  A.  and  B.,  who  are  ten- 
ants in  common,  and  a  covenant  therein  with  them, 
e.g.,  to  repair,  an  action  for  the  breach  of  such  a    [129] 
covenant  must,  on  the  death  of  B.,  be  brought,  not 
by  A.,  but  by  A.  and  M.,  the  representatives  of  B.  (r 

This  exception  is  only  an  apparent  one,  for  A.  and  M 
sue  in  the  character,  not  of  joint  covenantees,  but  of  joini 
owners  of  the  reversion. 

(q)   Ibid. 

(r)  Foley  v.  Addenbrooke,  7  Q.  B.  197  ;  Thompson  v.  Hakewill,  19  C.  B. 
N.  S.,  713  ;  35  L.  J.  18,  C.  P.     Leake,  Contracts,  628. 

I.    Cochrane    v.     Gushing,     124  goyne  v.  Ohio  Ins.  Co.,  5  Ohio  St. 

Mass.    219;     State    Treasurer    v.  586;  Henderson  v.  Talbert,  5  Sm. 

Friott.  24  Vt.  136;  Eich  v.  Scivers,  &  M.  no:  Bradford  v.  Curlee,  41 

73  111.  194;  County  of  Wapello  v.  Mass.  560;    Simpson  v.  Young,  2 

Bigham,    10   Iowa,   41;    Fisher   v.  Humph.  515;    Trimier  v.  Thomp- 

Allen.  36  N.J.  203;  Maples  v.  Gel-  son,   40    S.   C.    178;    Halstead    v. 

der,  I  Nev,  237.     But  see  Taylor  v.  Cockroft.  49  How.  Pr.  342 ;  Eldred 

Taylor.  5   Humph,   no;    Dingman  v.  First  Nat.  Bank,  71  Ind.  543. 
V.  Amsink,  77    Pa,  St.    n7;    Bur- 


J-JC  PARTIES     TO    ACTIONS. 


CHAPTER  V 

PRINCIPAL    AND    AGENT. 

Rule   17. — A  contract  entered  into  with  a  princi- 
I  pal  {a)  through   an  agent  is  in    law  made  with  the 
principal,   and    the    principal,   not   the   agent,  is  the 
proper  person  to  sue  for  the  breach  of  it.  (^by 

A  person  can  sue  on  any  contract  made  on  his  behalf, 
whether  made  by  an  agent  authorized  to  act  for  him  at 
the  time,  {c)  or  made  without  his  authority,  or  even  with- 
3ut  his  knowledge,  but  subsequently  ratified  by  him- 
self, {d) 

{a)  A  principal  is  "  a  person  who  being  competent  to  do  any  act  for  his  own 
benefit  or  on  his  own  account,  employs  another  person  to  do  it." 

An  agent  is  "  the  person  so  employed." 

Agency  is  "  the  relation  created  between  the  parties  " 

Authority  is  "  the  power  delegated  by  the  principal  to  the  agent." 

The  principal  is,  under  different  circumstances,  termed  an  "  employer," 
"  master,"  &c.,  according  to  the  nature  of  the  agency. 

The  agent  is  termed  the  "  employed,"  "  servant,"  "  factor,"  "  broker,"  &c. ; 
but  whatever  the  nature  of  the  agency,  the  above  definitions  apply  to  it  (Story, 
Agency,  s.  3). 

{b)  Story,  Agency,  ss.  418,  419  ;  Broom,  Maxims,  784,  785,  4th  ed. 

(c)  Watson  v.  Swann,  11  C.  B.,  N.  S.,  756;  31  L.  J.  210,  C.  P.;  Story, 
Agency,  ss.  391,  413. 

{d)  Ancona  v.  Marks,  7  H.  &  N,  686  ;  31  L.  J.  163,  Ex. 

I.  Sutton  V.  Mansfield,  47  Conn.  Bigelow,  43    Vt.    255  ;    Sutton    v. 

389 ;    Borroscale    v.    Bosworth,   99  Mansfield,  47  Conn.   389 ;    Fry   v. 

Mass.    381;    Fogg    V.    Sinclair,    5  Carter,   25   Ala.   479;    Williard   v. 

Cush.  479.  Lugenbuhl,  24  La.  Ann.  18;  Can 

But  if  the  agent  makes  the  con-  v.  United  States,  13  Ct.  of  CI.  146. 

tract  in  his  own  name,  though  it  is  And  if  the  agent  does  not  disclose 

known  he  is  acting  for  another,  he  his  agency,  the  principal  may  still 

may  sue  in  his  own  name.     Buck-  sue  in  his  own  name,  the  same  as 

bee  V.  Brown,  2 1  Wend.  112;  Harp  if  the  agent  were  principal  and  sued 

V.  Osgood,  2  Hill,  218;  Colburn  v.  in  his  own  name.     NicoU  v.  Burke, 

Phillips,   13   Gray,   65;    Culver  v.  78  N.  Y.  583;    National  Life  Ins» 


PRINCIPAL     AND     AGENT. 


151 


A  principal's  right  to  sue  on  a  contract  authorized  by 
him  at  the  time  of  its  making  arises  immediately  from 
the  nature  of  a  contract  made  by  means  of  an  agent. 
Such  an  agreement,  though  made  through  the  interven- 
tion of  an  agent,  is  as  much  an  agreement  between  the 
parties  as  if  it  had  been  made  between  them  directl}-. 
A  contract  that  is  with  P.,  {e)  made  by  means  of  A.,    [131] 

(<r)  Throughout  this  and  the  other  chapters  on  agency  (Chapters  XI I.,  XX., 
XXVI.),  whenever  letters  are  employed  in  describing  the  parties  to  any  trans- 
action, P.  is  used  for  the  principal,  or  alleged  principal,  A.  for  the  agent  of 
such  principal,  and  T.  for  the  third  or  other  party  to  the  contract  or  transaction. 


Co.  V.  Allen,  116  Mass.  390  ;  Barry 
V.  Page,  10  Gray,  399  ;  Culver  v. 
Bigelow,  43  Vt.  255;  Sutton  v, 
Mansfield,  47  Conn.  389;  H.  R  & 
E.  Ry.  Co.  V.  Walsh,  85  111.  59; 
Sisson  V.  Cleveland,  14  Mich.  496  ; 
Thurn  v.  Alta  Tel.  Co.,  15  Cal. 
474  ;  Oelrichs  v.  Ford,  21  Md.  501  ; 
Jowers  v.  Blandy,  58  Ga.  383  ;  Fos- 
ter v.  Smith.  2  Coldw.  475  ;  Mc- 
Nair  v.  Thompson,  5  Mart.  (La.) 
610;  Ramsdell  v.  United  States,  2 
Ct.  of  CI.  515. 

When  an  agent  makes  a  con- 
tract in  his  own  name  on  behalf  of 
the  principal,  and  furnishes  the 
money  therefor,  the  principal  may 
still  sue  on  it,  though  defendant  is 
entitled  to  as  good  a  position  as  if 
the  agent  had  been  the  real  con- 
tracting party.  Baltimore  Coal  Tar, 
&c.,  Co.  V.  Fletcher,  61  Md.  288. 

One  contracting  with  the  agent 
of  an  undisclosed  principal  may,  on 
discovery,  hold  him  on  the  con- 
tract, and  conversely  the  principal 
may  assert  his  rights  against  the 
other  party  thereto,  though  the 
agent's  relation  was  one  of  trust 
and  confidence.  Warder  v.  White, 
14  111.  App.  50. 

A  broker  sold  property  not  in  his 


possession  to  a  vendee,  who  dealt 
with  him  as  the  owner.  The  prin- 
cipal delivered  the  property  at  the 
agent's  request,  not  knowing  he 
had  contracted  in  his  own  name. 
The  agent  having  received  pay- 
ment, never  having  been  clothed 
with  authority  to  do  so,  is  no  bar  to 
the  suit  by  principal.  Crosby  v. 
Hill,  39  Ohio  St.  100. 

Where  an  agent  was  deceived  by 
a  false  entry,  showing  land  he  pur- 
chased for  the  principal  had  been 
redeemed  from  tax  sale,  the  princi- 
pal might  sue.  Perkins  v.  Evans, 
61  Iowa,  35. 

When  an  agent  sues  in  his  own 
name  he  must  disclose  the  name  of 
his  principil  in  his  petition.  Wil- 
liard  v.  Lugenbuhl,  24  La.  Ann.  18. 

When  a  note  is  made  to  the  payee 
as  president,  agent  or  cashier,  he 
may  sue  in  his  own  name.  Fair- 
field V.  Adams,  16  Pick.  382  ;  Whit- 
comb  v.  Smart,  38  Me.  265  ;  Ely  v. 
Porter,  58  Mo  158  ;  Ord  v.  McKee, 
5  Cal.  516.  But  the  principal  may 
sue  on  a  non-negotiable  note  made 
payable  to  his  agent  if  on  his  be- 
half. National  Life  Ins.  Co.  v. 
Allen,  116  Mass.  399;  Garland  v. 
Reynolds,  25  Me.  46. 


152  PARTIF.S     TO     ACTIONS. 

is  as  much  a  contract  with  P.  made  by  T.,  the  other  party 
to  it,  as  if  it  had  been  made  with  P.  by  T.  through  the 
means,  not  of  A.,  but  of  a  letter.  (/)  Hence,  for  example, 
on  the  sale  of  goods  by  a  shopman,  the  contract  to  pay  is 
mantiestly  not  with  the  shopman,  but  with  his  master, 
who  is  obviously  the  person  to  sue  for  the  price  of  the 
goods.  As  an  agent  is,  as  long  as  he  acts  merely  as 
an  agent,  simply  the  means  of  communication  between 
the  contracting  parties,  infants  or  married  women,  who 
are  incapable  of  contracting  for  themselves,  are  not  capa- 
ble of  contracting  as  agents  on  behalf  of  others. 

A  principal's  right  to  sue  on  a  contract  which  he  has 
ratified  depends  on  the  principle  that  ratification  has  a 
retrospective  effect,  and  is  equivalent  to  a  prior  command. 

If  "  [A.],  unauthorized  by  me,  makes  a  contract  on  my 
behalf  with  [T.],  w^hich  1  afterwards  recognize  and  adopt, 
there  is  no  difficulty  \n  dealing  with  it  as  having  been 
originally  made  by  my  authority.  [T.]  entered  into  the 
contract  on  the  understanding  that  he  was  dealing  with 
me,  and  when  I  afterwards  agreed  to  admit  that  such 
was  the  case,  [T.]  is  precisely  in  the  position  in  which  he 
meant  to  be  ;  or,  if  he  did  not  believe  [A.]  to  be  acting  for 
me,  his  condition  is  not  altered  by  my  adoption  of  the 
agency,  for  he  may  sue  [A,]  as  principal  at  his  option,  and 
has  the  same  equities  against  me  if  I  sue  which  he  would 
have  had  against  [A.]."  {g) 

A  principal  may  sue  on  a  contract  ratified  by  him  after 
action  brought,  {h)  but  his  right  to  sue  on  the  ground  of 
ratification  is  subject  to  the  following  qualifications  : 
[132]  First.  The  contract  must  at  the  time  of  its 
making  be  professedly  {i)  made  on  behalf  of  the 
plaintiff.  For  "  it  is  clear  law  that  no  one  can  sue  upon  a 
contract  unless  it  has  been  made  by  him  or  by  an  agent  pro- 
fessing to  act  for  him,  and  has  been  ratified  by  him  ;"  {k) 

(/)  See  Story,  Agency,  s.  391. 

(g  )  Bird  V.  Brown,  4  Exch.  786,  798.     See  Leake,  Contracts,  268. 
{h)  Ancona  v.  Marks,  7   H.  &  N.  686  ;  31  L.  J.  163,  Ex. 
(j)  Saunderson  v.  Griffiths,  5  B.  &  C.  915,  judgment  of  HoLKOYD,  J.,  Vere 
r.  Ashby,  10  B.  &  C.  288.  398. 

xk)  Watson  v.  Swann,  li  C.  B.,  N.  S.,  769,  judgment  of  Erle,  C.  J. 


PRINCIPAL    AND    AGENT.  153 

and  it  seems  essential  that  the  agent  should  not  only 
intend  but  also  profess  to  act  on  behalf  of  the  person  who 
subsequently  ratifies,  since  "the  rule  as  to  ratification 
applies  only  to  the  acts  of  one  who  professes  to  act  as  the 
agent  of  the  person  who  afterwards  ratifies."  (/)  Thus, 
where  A.,  a  broker,  having  effected  a  general  policy  with 
T.  on  goods  "  to  be  valued  and  declared  as  interest  might 
appear,"  and  having,  afterwards,  received  an  order  from 
P.  to  insure  goods  for  him,  indorsed  a  declaration  of 
P.'s  goods  on  the  policy,  it  was  held  that  P.  could  not  sue 
on  the  policy,  because  it  had  not  been  made  with  P.,  noi 
on  P.'s  behalf,  and  was  not  intended,  at  the  time  it  was 
made,  to  be  a  contract  with  P.  iiii) 

Secondly.  The  contract  must  be  made  with  a  person 
capable  of  being  ascertained  at  the  time  when  the  contract 
is  made.  («) 

A  contract,  therefore,  can  not  be  ratified  by  a  person 
not  in  existence  at  the  time  the  contract  is  made,  ip) 

But,  though  "  the  law  obviously  requires  that  the 
person  for  whom  the  agent  professes  to  act  must  be  a 
person  capable  of  being  ascertained  at  the  time,  it  is  not 
necessary  that  he  should  be  named  ;  but  there  must  be 
such  a  description  of  him  as  shall  amount  to  a  reasonable 
designation  of  the  person  intended  to  be  bound  by  the  con- 
tract." (/)  Thus,  a  ratification  may  be  valid  where 
the  agent  professes  to  act  for  persons  filling  a  certain  [133] 
character,  although  the  actual  persons  are  not  then 
ascertained,  or  are  unknown  to  him.  {q)  A.  entered  into  a 
contract  with  T.  on  behalf  of  an  intestate's  estate.  After 
the  contract  was  made,  P.  took  out  letters  of  administra- 
tion. It  was  held  that  P.  might  sue  T.  upon  the  contract, 
lor  "  the  sale  was  made  by  a  person  who  intended  to  act 
as  an  agent  for  the  person,  whoever  he  might  happen  to 

(/)  Vere  v.  Ashby.  lo  B.  &  C.  298,  per  Parkp:,  B. 
{»!)  W-itson  V.  Swann,  ii  C.  B..  N.  S.,  756  ;  31  L.  J.  210,  C.  P. 
[n]  Ibid.,   II  C.  B.,  N.  S.,  771,  judgment  of  WiM.KS.  J. 

(p)  See  Kelner  v.  Baxttr,  \..  R.  2,  C.  P.  174.  186.     See  as  to  coini)anics  not 
being  liable  for  acts  of  promoters,  I  Lindley,  Partnership,  2nd  ed.,  400. 
(/>)  Watson  V.  Swann,  11  C.   B.,  N.  S.,  771,  per  Wll.LES,  J 
(y)   Foster  V.  Bates,  12  M.  &  W.  226, 


154  PARTIES     TO    ACTIONS. 

be,  who  lcg;ally  represented  the  intestate's  estate,  and  it 
was  ratified  by  the  plaintiff  after  he  became  adminis- 
trator ;  and  when  one  means  to  act  as  agent  for  another, 
a  subsequent  ratification  by  the  other  is  always  equivalent 
to  a  prior  command.  Nor  is  it  any  objection  that  the 
intended  principal  was  unknown  at  the  time  to  the  person 
who  intended  to  be  the  agent."  (r) 

Thirdly.  The  contract  sued  upon  must  be  ratified 
wholly,  if  at  all.     It  can  not  be  ratified  in  part,  {s) 

Fourthly.  The  ratification  must  not  put  the  third 
part}' — i.  e.,  the  defendant — in  a  worse  position  than  he 
was  in  at  the  time  of  making  the  contract.  (/) 

The  contract  not  being  with  the  agent,  he  can  not  sue 
upon  it.  He  is,  in  fact,  a  mere  instrument  through  whom 
the  contract  between  the  parties  to  it  is  effected.  Thus, 
if  a  sale  is  made  by  a  clerk,  shopman,  or  other  servant,  he 
has  no  right  to  sue  for  the  price  of  the  goods,  [u)  Where 
a  mere  agent  sues  another  mere  agent,  the  action  must 
fail,  through  -want  of  privity  between  the  parties ;  i.  e., 
from  want  of  there  being,  as  between  them,  any  contract 

whatever,  {x) 
[134]         Some   difficulty   arises    in   appljang  the  law  to 
actions    against    carriers    for    non-delivery.     The 
difficulty  consists  in  determining  whether  the  consignor 
acts  on  his  own  behalf  or  as  agent  for  the  consignee,  {y) 

The  exceptions  to  the  rule  under  consideration  are  of 
two  kinds.  They  are  either  cases  in  which  the  agent 
must  sue  and  the  principal  can  not  sue,  or  else  cases  in 
Avhich  either  the  principal  or  the  agent  may  sue. 


{r)  Ibid.,  233,  per  Curiam.  See  Tliarpe  v.  Stalhvard,  5  M.  &  G.  760  ;  12 
L.  J.  251,  C.  P.;  Watson  v.  Swann.  11  C.  B.,  N.  S.  756,  769  ;  31  L.  J.  210, 
213,  C.  P.  Leake,  Contracts,  269  ;  and  compare  2  Ainould,  Marine  Insurance, 
3rd  ed.,  1033. 

(j)  Compare  Ferguson  v.  Carrington,  9  B.  &  C.  59  ;  Foster  v.  Smith  18  C. 
B.  156.     Smith,  Master  and  Servant,  2nd  ed.,  156,  157. 

(/)  Bird  V.  Brown,  4  Exch.  786,  798. 

(w)  Story,  Agency,  s.  361.     Williams  v.  Millington,  i  H.  Bl.  81. 

(jr)  Depperman  v.  Hubbersty,  17  Q.  B.  767  ;  Coombs  v.  Bristol  and  Exetei 
Rail.  Co.,  3  H.  &  N.  I  ;  27  L.  J.  269,  Ex.  ;  Hurley  v.  Baker,  16  M.  &  W.  26; 
l6  L.  J.  273,  Ex. 

(_y)  See  ante. 


PRINCIPAL    AND    AGENT,  155 

Of  the  seven  following  exceptions,  the  three  first  are 
cases  in  which  the  agent  must  sue  and  the  principal  can 
not  sue ;  the  four  last  are  cases  in  which  either  the  prin- 
cipal or  the  agent  may  sue. 

Exception  i. — Where  an  agent  is  contracted  with  by  deed  in 
his  own  name,  (s) 

If  an  agent,  though  m  reality  signing  as  agent  for  a 
principal,  execute  a  deed  in  his  own  name,  he  is  the  only 
person  who  can  sue  upon  the  instrument ;  and  this  is  so 
even  though  it  be  expressed  to  be  made  "  between  A.  as 
agent  of  T.  of  the  one  part,  and  T.  of  the  other."  For  if 
the  covenants  are  with  P.  he  can  not  sue,  as  not  being  a 
party  to  the  indenture,  {a)  and  if  the  covenants  are  with 
A.  he  is  clearly  the  only  person  to  sue  for  their  breach,  {b) 

Exception  2. — Where  the  agent  is  named  as  a  party  to  a  bill 
of  exchange,  &c. 

No  person  can  claim  upon  a  ^av  of  exchange  or  prom- 
issory note  except  the  parties  named  in  the  instrument. 
Hence,  though  the  party  entitled  upon  such  instrument 
be  an  agent,  the  action  must  be  brought  in  his 
name,  and  can  not  be  brought  in  the  name  of  the  [135] 
principal,  who  is  not  a  party,  {c) 

This  exception  would  appear  to  be  of  small  import- 
ance, since  the  right  to  sue  on  a  bill  of  exchange,  cS:c.,  is 
assignable,  {d)  When,  therefore,  an  agent  is  named  as 
party  to  a  bill  of  exchange,  &c.,  he  can  transfer  the  right 
to  the  principal  by  assigning  to  him  the  bill. 

(2)  Priestly  v.  Fernie,  34  L.  J.  172,  Ex.;  3  H.  &  C.  977  ;  Schack  v.  An- 
thony, I  M.  &  S.  573.  Compaie  Appleton  v.  Binks,  5  East,  148.  See  Rule 
12. 

(a)  Berkeley  V.  Hardy,  5  B.  &  C.  355.     See  ante. 

(b)  Wilks  V.  I5nck,  2  East,  142.  There  is,  however,  nothing  to  prevent  P. 
executing  a  deed  by  means  of  A. 

(c)  I.eake,  Contracts,  302. 

( </)  Rule  15  Excep'ion  2.  Compare  i  Lindlcy,  Partnership,  2nd  ed. 
473.  474- 


(56  PARTI  JiS     TO    ACTIONS. 

Exception  3. — Where  tlie  right  to  sue  on  a  contract  is  by 
the  terms  or  circumstances  of  it  expressly  restricted  to  the 
agent. 

Though  A.  is  acting  as  agent  of  P.,  either  T.  may 
decline  expressly  to  contract  with  any  other  than  A., 
or  else  it  may  be  manifest  from  the  circumstances  of  the 
contract  that  T.  contracted  with  A.,  and  with  A.  only. 
In  this  case,  although  A.  may  have  been,  as  a  matter  of 
fact,  acting  as  agent  for  P.,  and  though  P.  may  have  rights 
as  against  A.,  yet  P.,  with  whom  T.  never  contracted,  can 
.lot  sue  T.,  and  A.,  who  is  the  only  person  with  whom  he 
did  contract,  is  the  only  person  who  can  sue  T.  Thus, 
where  a  contract  was  made  with  A.,  one  of  several  part- 
ners, in  his  individual  capacity,  and  he  at  the  time  de- 
clared that  he  alone  was  interested  in  it,  it  was  held  that 
the  other  partners,  although  they  might  be  interested  in 
it,  could  not  sue.  upon  it ;  {e)  for  though  the  partner 
might,  as  regards  his  fellow-partners,  act  as  their  agent, 
yet  "if  one  partner  makes  a  contract  in  his  individual 
capacity,  and  the  other  partners  are  willing  to  take  the 
benefit  of  it,  they  must  be  content  to  do  so  according  to 
the  mode  in  which  the  contract  was  made."  (/) 

If  T.  contracts  with  A.  in  consideration  of  the  knowi 
personal  capabilities  of  A. ,  he  can  not  be  made  liable  t( 
P.,  for  whom  A.  was  acting  as  agent,  {g) 

A.  executed   a  charter-party,  in  which  he  was 

[136]    described  as  owner  of  the  ship;  it  was  held  that 

evidence  was  not  admissible  to  show  that  P.  was 

the  real  owner  of  the  ship,  in  order  to  entitle  him  to  sue 

upon  the  charter-party.  (//) 

This  exception  contains  the  principle  which  governs 
all  the  exceptional  cases  in  which  an  agent  can  sue  for  a 
breach  of  contract,  and  a  principal  can  not.  The  reason 
of  this  peculiarity  always  is,  that  the  other  contracting 

(^"1  Lucas  V.  De  la  Cour,  i  M.  &  S.  249. 

(/)  Ibid.,  250,  per  Ei.lenborough,  C.  J. 

\g)  Robson  V.  Diummond,  3  B.  &  Ad.  303. 

(,h)  Humble  v.  Hunter,  12  Q.  B.  310  ;  X7  L.  J.  350.  Q.  B. 


PRINCIPAL     AND    AGENT.  157 

party  has  contracted  with  the  agent  alone.  That  the 
contract  was  made  with  him  alone  may  appear  by  the 
form  of  the  contract  itself  {c.  g.,  where  it  is  by  deed),  or 
may  be  proved  from  the  circumstances  of  the  case.  But 
the  reason  why  the  agent  alone  can  sue  will  be  found  to 
be  in  every  instance  the  same,  viz.,  that  as  between  him 
and  the  other  party  to  the  contract,  he  has  contracted  not 
as  an  agent,  but  as  sole  principal. 

Exception  4. — Where  the  contract  is  made  with  the  agent 
himself;  i.  e.,  where  the  agent  is  treated  as  the  actual  party 
with  whom  the  contract  is  made. 

"  If  an  agent  makes  a  contract  in  his  own  name,  the 
principal  may  sue  and  be  sued  upon  it,  for  it  is  a  general 
rule  that  whenever  an  express  contract  is  made,  an  action 
is  maintainable  upon  it,  either  in  the  name  of  the  person 
with  whom  it  was  actually  made  {i.  e.,  the  agent],  or  in 
the  name  of  the  person  with  whom  in  point  of  law  it  was 
made  [i.  e.,  the  principal.]"  {i)  The  agent  can  sue  because 
he  has  been  treated  by  the  other  party  as  the  party  to  the 
contract.  The  principal  can  sue  because  he  is  the  person 
really  interested  in  the  contract,  for  whose  benefit  it  is 
made,  and  with  whom  the  law  considers  it  to  be  made  ; 
{k)  for  though  a  person  who  has  expressly  contracted  with 
A.  can  not  treat  the  contract  as  not  being  with  A., 
on  the  ground  that  another  person,  P.,  is  really  in-  [137] 
terested,  yet  when  a  contract  is  made  expressly 
with  A.,  either  by  word  of  mouth  or  in  writing  (provided 
the  written  instrument  be  not  a  deed),  it  is  allowable  for 
P.,  the  person  really  interested,  to  show  that  the  contract 
is,  though  on  the  face  of  it  with  A.,  yet  in  reality  with 
him,  and  that  he,  therefore,  has  a  right  to  sue  upon  it. 

"  Where  an  agent  makes  a  contract,  stating  who  his 
principal  is,  the  principal,  and  not  the  agent,  is  the  person 

(i)  Cothny  V.  Fcnnfll.  lo  B.  &  C.  671,  672,  per  CURIAM. 

(k)  This  case  differs  from  those  included  under  Exception  3,  since,  in  tnose, 
the  afjent  was  treated  not  only  as  a  party,  but  as  the  only  party  to  the 
contract, 


158  PARTIKS     TO    ACTIONS. 

C^encrally  the  party  to  the  contract,  if  the  agent  have  the 
authority  he  alleges.  But  on  the  other  hand,  an  agent 
may,  and  often  does,  make  himself  personally  a  party  to 
the  contract,  if  the  form  of  the  contract  be  such  as  to 
amount  to  saying,  '  Although  I  am  an  agent  only,  never- 
theless I  contract  for  myself; '  and  although  the  principal 
may  in  some  cases  take  advantage  of  such  a  contract,  the 
agent,  being  the  contracting  party,  is  clearly  liable,  and 
can  therefore  sue  upon  it."  (/) 

Nor  does  it  appear  to  make  any  substantial  difference 
whether  the  contract  is  in  writing  or  by  word  of  mouth. 
The  only  difference  seems  to  be  "  that  if  the  contract  is 
by  word  of  mouth,  it  is  not  possible  to  say  from  the 
agfent  using:  the  words  '  I '  and  '  me  '  that  he  means  him- 
self  personally;  whereas,  if  the  contract  is  in  writing 
signed  by  his  own  name,  in  speaking  of  himself  as  con- 
tracting, the  natural  meaning  of  the  words,  is,  that  he 
binds  himself  personally,  and  he  is  taken  to  do  so,  and 
then  the  other  party  is  bound  to  him."  {jn) 

An  agent  was  employed  by  a  corporation  as  auctioneer 
to  let  land  belonging  to  the  corporation,  and  was  known 
to  be  acting  in  this  capacity,  yet  he  was  held  entitled  to 
bring  an  action  in  his  own  name  for  the  hire  of  the  land, 
(«)  and  the  decision  was  thus  explained  by  Blackburn, 

"  The  plaintiff  says,  *  I,  as  auctioneer,  that  is,  as 
[138]  agent,  let  the  land,  and  I  contract  that  on  the  price 
being  paid  to  me,  the  person  paying  the  price  shal 
have  the  enjoyment  of  the  land.'  The  agreement  was  not 
reduced  to  writing,  but  that  is  the  effect  of  the  conditions, 
of  the  auction,  and  what  took  place  at  the  auction.  It 
may  be  that  it  was  known  that  the  plaintiff  was  not 
.acting  for  himself,  not  under  the  directions  of  the  race  or 
some  other  committee,  but  that  is  immaterial  for  the 
present  purpose,  if  a  contract  be  made  with  the  agent 
notwithstanding  he  is   known    to  be   an    agent.      There 

(/)  Fisher  v.  Marsh.  34  L  J.  178.  Q.  B-  per  Blackburn,  J. 
(m)  Williamson  v  Barton,  7  11.  &  N.  907,  per  Bramwell,  B. 
(«)  Fisher  v.  Marsh,  34  L.  J.  177.  Q-  B.  ;  6  B.  &  S.  411. 


PRIXCIPAL     AND    AGENT.  159 

were  numerous  reasons  why  the  contract  should  be  made 
by  and  with  the  plaintiff  himself,  and  at  all  events  there 
was  evidence  for  the  jury  that  the  contract  was  made  with 
him."  {p) 

"  The  rule  of  law  that  the  agent  who  makes  the  con- 
tract may  bring  an  action  on  the  contract  in  respect  of 
his  privity,  an  J  the  principal  in  respect  of  his  interest," 
(/)  or,  in  other  words,  that  where  an  agent  is  made  a 
party  to  a  contract,  either  the  principal  or  the  agent  may 
sue  for  a  breach  of  it,  includes  within  it  several  cases 
which  are  sometimes  reckoned  separate  exceptions  to  the 
general  rule,  {q)  Under  this  head  might  be  brought  the 
following  exception,  which  is  more  conveniently  treated 
as  a  separate  exceptional  case. 

Exceptiofi  5. — Where  the  agent  is  the  only  known  or  osten 
sible  principal,  or  where  the  agent  has  made  a  contract  not 
under  seal  in  his  own  name  for  an  undisclosed  principal,  (r) 

"  It  is  a  well-established  rule  of  law  that  where  a  con- 
tract not  under  seal  is  made  by  an  agent  in  his  own 
name  for  an  undisclosed  principal,  is)  either  the  [139] 
agent  or  the  principal  may  sue  on  it.  The  defendant 
in  the  latter  case  being  entitled  to  be  placed  in  the  same 
situation  at  the  time  of  the  disclosure  of  the  real  principal 
as  if  the  agent  had  been  the  contracting  party.     The  rule 

{d)  Fisher  v.  Marsh,  34  L.  J.  178,  Q.  B.,  judgment  of  Blackiujrn,  J.  Con 
trast  Evans  v.  Evans,  3  A.  &  E.  132  ;  and  compare  Higgiiis  v.  Senior,  8  M.  & 
W.  834;  II  L.  J.  199,  Ex. 

(/)  Sykes  v.  Giles,  5  M.  &  W.  650,  per  Ahinger,  C.  B. 

(17)  OfTley  V.  Ward,  I  Lev.  235  ;  Joseph  v.  Knox,  3  Camp.  320  ;  Piggott  v. 
Thompson,  3  B.  &  P.  129.  Hagedorn  v.  Oliverson,  3  M.  &  S.  4S5.  Compare 
Clay  V.  Souihen,  2i  I..  J.  202,  Ex.,  nom..  Clay  v.  Sothern,  7  Exch.  717,  con- 
trasted with  Lucas  v.  Beale,  20  L.  J.  134,  C.  P.  ;  10  C.  B.  739. 

(r)  Sims  v.  Bond.  5  B.  &  Ad.  389  ;  2  Smith,  L.  C.  fnh  ed.,  355. 

(s)  The  expression  "  undisclosed  principal  "  is  ambiguous.  It  means  cither 
a  principal  who  is  known  to  exist,  l)Ut  wlmse  name  is  not  known  h)  the  party 
entering  into  the  contract,  or  a  principal  who>e  existence  is  not  known  ;  e.s;., 
where  the  other  party  conceives  the  agent  to  he  himself  the  principal.  In  cither 
case  the  agent  must,  from  the  nature  of  the  thing,  contract  in  his  own  name,  and 
in  either  case  either  the  principal  or  the  agent  may  sue.  .Schmaltz  v.  Avery,  20 
L  J.  228,  Q.  B.  Story,  Agency,  ss.  393-410.  Compare  Thomson  v.  Daven- 
port. 2  Smith,  L.  C.  6th  ed.,  327.  334- 


i6o  PARTIES     TO    ACTIONS. 

is  most  frequently  acted  upon  m  sales  by  factors,  agents, 
or  partners,  in  which  case  either  the  nominal  or  the  real 
plaintilT  may  sue,  but  it  may  be  equally  applied  to  other 
cases."  (/) 

Exception  6. — Where  an  agent  has  made  a  contract  in  the 
subject-matter  of  which  he  has  a  special  interest  or  property. 

Under  this  exception  auctioneers,  factors,  and  other 
agents  of  a  similar  kind  have  a  risfht  to  sue  for  the  price 
of  goods  sold  by  them.  They  are  not  mere  agents,  but 
persons  who  have  an  interest  in  the  goods,  and  to  the 
extent  of  that  interest  principals.  Thus  A.,  an  auctioneer 
employed  to  sell  the  goods  of  P.,  has  been  held  able  to 
maintain  an  action  for  goods  sold  and  delivered  against 
T.,  the  purchaser,  {x) 

"  An  auctioneer  has  a  possession  coupled  with  an  in- 
terest in  goods  which  he  is  employed  to  sell,  not  a  bare 
custody  like  a  servant  or  shopman.  There  is  no  differ- 
ence whether  the  sale  be  on  the  premises  of  the  owner, 
or  at  a  public  auction  room  ;  for  on  the  premises  of  the 
owner  an  actual  possession  is  given  to  the  auctioneer  and 
his  servants  by  the  owner,  not  merely  an  authority  to 
sell.  I  have  said  a  possession  coupled  with  an  interest, 
but  an  auctioneer  has  also  a  special  property  m  him 
coupled  with  a  lien  for  the  charges  of  the  sale,  the 
[140]  commission  and  the  auction  duty  which  he  is  bound 
to  pay.  In  the  common  course  of  auctions  there  is 
no  delivery  without  actual  payment ;  if  it  be  otherwise 
the  auctioneer  gives  credit  to  the  vendee  entirely  at  his 
own  risk."  {y) 

Jixception  7. — Where  the  agent  has  paid  away  money  of  the 
principal's  under  circumstances  which  gave  a  right  to  recover 
it  back. 

{()  Sims  V.  Bond,  5  B.  &  Ad.  393,  per  Curiam. 

(x)  Williams  v.  Millington,  i  H.  Bl.  8r.  A  broker  is  not  such  an  agent, 
and  can  not  sue  on  contracts  made  by  him  as  a  broker.  Fairlie  v.  Fenton,  i 
L.  R.  5  Ex.  169. 

{y)  Williams  v.  Millington,  i  H.  Bl.  84,  85,  judgment  of  Loughborough 
C.J. 


PRINCIPAL    AND    AGENT.  i6i 

"  If  an  agent  pays  money  for  his  principal  by  mistake 
or  otherwise  which  he  ought  not  to  have  paid,  the  agent 
as  well  as  the  principal  may  maintain  an  action  to  recover 
it  back."  {z)  T.,  a  custom-house  officer,  exacted  from  A., 
the  master  of  a  ship,  exorbitant  fees  on  account  of  the 
ship.  The  payment  of  the  particular  fees  was  imposed  by 
statute  upon  the  master  personally.  It  was  held  that 
either  the  owners  or  the  master  might  sue  the  custom- 
house officer  for  the  excess,  {a) 

The  four  last  exceptions  all  {b)  rest  on  the  ground 
that,  while  the  principal  has  the  ordinary  right  of  every 
principal  to  sue  for  the  breach  of  a  contract  made  on  his 
behalf,  the  agent  has  been  dealt  with  as  a  party  (though 
not  the  only  part}^)  to  the  contract  or  to  the  transaction 
which  g-ives  a  rio^ht  of  action  as  if  there  had  been  a  breach 
of  contract,  e.  g.,  where  the  agent  sues  for  money  of  his 
principal's  which  he  was  wrongfully  induced  to  pa}'. 

The  choice  or  election  of  suing  in  the  name  either  of 
the  principal  or  the  agent  is  subject  to  certain  limitations, 
of  which  the  object  is  to  secure  that  this  right  of  choice 
or  election  shall  not  be  so  exercised  as  to  work  injustice 
to  any  of  the  persons  concerned  in  the  contract. 

1st.  The  agent's  right  to  sue  is  subject  to  the  princi- 
pal's right  of  interposition.  "  Wherever  the  princi- 
pal, as  well  as  the  agent,  has  a  right  to  maintain  a  [141J 
suit  upon  any  contract  made  by  the  latter,  he  may 
generally  supersede  the  right  of  the  agent  to  sue,  by 
suing  in  his  own  name,  {c)  So  the  principal  may,  by  his 
own  intervention,  intercept  or  suspend  or  extinguish  the 
rights  of  the  agent  under  the  contract,  as  if  he  makes 
other  arrangements  with  the  other  contracting  party,  or 
waives  his  claims  under  it,  or  receives  payment  thereof, 
or  in  any  other  manner  discharges  it.  This,  indeed,  re- 
sults from  the  general  principle  of  law,  that  every  man 
may  waive  or  extinguish  rights,  the  benefit  whereof  ex- 


(«)  Story,  Agency,  s.  398. 
(a)  Stevenson  v.  Mortimer,  Cowp.  806 
{b)  Exceptions,  4-7. 
{c)  Sadler  v.  Leigh,  4  Camp.  194. 
11 


1 62  PARTIES     TO    ACTIONS. 

clusively  belongs  to  himself,  and  that  whatever  rights  are 
acquired  by  an  agent  are  acquired  for  his  principal."  {d) 

This  doctrine  applies  strictly  only  where  the  agent 
entering  into  the  contract  is  the  mere  representative  of  the 
principal,  and  has  acquired  .no  interest,  lien,  or  other 
claim  under  it  by  virtue  of  his  agency.  For  if  he  has 
(r.  ^.,as  being  a  factor)  acquired  such  interest,  lien,  or 
other  claim,  then  to  the  extent  thereof  he  is  entitled  to 
protection,  as  well  against  the  principal  as  against  the 
other  contracting  party,  {e) 

2ndl3\  Where  an  undisclosed  principal  sues  on  a  con- 
tract made  with  his  agent,  "  the  defendant  is  entitled  to 
be  placed  in  the  same  situation  at  the  time  of  the  dis- 
closure of  the  real  principal  as  if  the  agent  had  been  the 
contracting  party  ;"  (/)  (that  is)  the  defendant  may  avail 
himself  of  all  defenses  which  would  have  been  available 
to  him  against  the  agent  at  the  time  of  the  disclosure  had 
that  agent  been  really  a  principal,  {g) 

By  "  undisclosed  "  principal  is  here  meant  a  prm- 
{ 142]  cipal  of  whose  existence  as  principal  the  defendant 
was  unaware  at  the  time  of  making  the  contract, 
and  not  a  principal  whose  name  was  unknown  to  the 
defendant,  but  whom  he  knew  or  supposed  to  exist.  In 
other  words  a  defendant  who  contracts  with  an  agent 
supposing  him  to  be  a  principal,  may  m  an  action  by  the 
real  principal  avail  himself  of  defenses  good  against  the 
agent.  But  a  defendant  who  contracts  with  an  agen 
knowing  him  to  be  only  an  agent,  but  not  knowing  whost 
agent  he  is,  can  not,  in  an  action  by  the  principal,  avail 
himself  of  a  defense  good  against  the  agent.  (//) 

3rdly.  When  an  agent  sues  in  his  own  name  the  de- 
fendant may  avail   himself  of  those  defenses  which   are 

id)  Story,  Agency,  s.  403. 

(e)  Story,  Agency,  s.  407.  Drinkwater  v.  Goodwin,  Cowp.  251  ;  Morris  v. 
Cleasby,  i  M.&  S.  576  ;  Hudson  v.  Granger,  5  B.  &  Aid.  27  ;  Coppin  v.  Wali<er, 
7  Taunt.  237  ;  Robinson  v.  Rutter,  4  E.  &  B.  954  ;  24  L.  J.  250.  Q.  B. 
This  case  seems  to  show  that  notice  is  not  needed.  Smith,  Mercantile  Law, 
7th  ed.,  161,  162.      But  see  Grice  v.  Kendrick,  L.  R.  5,  Q.  B.  340. 

(/)  Sims  V.  Bond,  5  B.  &  Ad.  393,  per  Curiam. 

(s)  Thomson  v.  Davenport,  2  Smith,  L.  C.  6th  ed.,  359. 

(A)  Semenza  v.  Brinsley,  34  L.  J.  i^i,  C.  P. ;   18  C.  B..  N.  S..  467. 


PRINCIPAL    AND    AGENT.  163 

good  as  against  the  agent  Avho  is  the  plaintiff  on  the 
record,  (z)  and  may  also  avail  himself  of  those  defenses 
which  are  good  against  the  principal  for  whose  benefit 
the  aciion  is  brought,  {k) 

The  results  of  suing  in  the  name  of  the  principal  or 
the  agent  are  exemplified  by  the  rules  as  to  the  right  of 
set-off. 

Set-off.— T.  contracts  with  A.,  the  agent  of  P.,  under 
circumstances  which  make  it  possible  for  an  action  to  be 
brought  either  by  P.  or  A. 

An  action  is  brought  by  P. 

T.  can  set-off"  against  a  debt  claimed  by  P.  any  debts 
due  from  P.  to  T.  If  T.  supposed  A.  to  be  contracting 
as  principal,  he  can  also  set-off  debts  due  from  A.  to 
T.  (/)  If  T.  knew  that  A.  was  contracting  as  an  agent, 
even  though  T.  did  not  know  that  he  was  contracting  as 
an  agent  of  P.,  and  a  fortiori,  if  T.  knew  that  A. 
was  contracting  as  an  agent  of  P.,  T.  can  not  set  off  [143] 
debts  due  from  A.  to  him.  {m) 

Where  a  purchaser  bought  goods  of  a  person  whom  he 
knew  to  be  only  an  agent,  though  he  did  not  know  whose 
agent  h6  was,  it  was  held  that  the  purchaser  could  not, 
in  an  action  bv  the  principal  for  the  price  of  the  goods, 
set-off  a  debt  due  to  the  purchaser  from  the  agent.  For, 
in  order  to  make  this  defense  of  set-off  "  a  valid  defense, 
it  seems  obvious  that  the  plea  must  show  that  the  con- 
tract was  made  by  a  person  whom  the  plaintiff  entrusted 
with  the  possession  and  the  ownership  of  the  goods,  that 
he  sold  them  as  his  own  in  his  own  name  as  princii)al 
with    the  authority  of  the  plaintiff,  and  that  the  defen- 


(»■)  Gibson  v.  Winter,  5  15.  &  Ad.  96.     See  ante. 

ik)  Thomson  v.  Davenport,  2  Smith.  L.  C.  6th  ed.,  358,  350.  This  doc- 
trine, thougli  true  in  general,  is  subject  to  considerable  qualifications,  and  does 
not  apply  where  the  agent  suing  is  not  a  mere  agent,  i.  e.,  where  he  has  him- 
self an  interest  in  the  contract.  See,  e.g.,  Robinson  v.  Rutter,  4  E.  &  H.  954  ; 
24  L.  J.  250.  Q.  IJ. 

(/)  George  v.  Ciaggett.  7  T.  R.  359  ;  2  Smith.  L.  C,  6th  ed.,  113,  115.  116; 
Sims  V.  IJond.  5  B.  &  Ad.  393. 

{m)  Semenza  v,  Brin.slcy,  t3  C.  U..  N.  S,  467  ;  34  I-  J-  'f".  C.  P. 


i64  PARTIES     TO    ACTIONS. 

riant  then  believed  him  to  be  the  principal  in  the  trans- 
action." (//) 

An  action  is  brought  by  A. 

T.  can  set-off  debts  due  to  him  from  A.  T.  can  not,  it 
would  seem,  set-off  debts  due  to  him  from  P.  {p),  though, 
perhaps,  such  debts  may  now  be  pleaded  as  an  equitable 
defense.  (/)  The  difficulty  of  pleading  this  set-off  de- 
pends upon  the  words  of  the  statute  allowing  set-off.  {g) 
Other  defenses,  e.  g.,  payment  to  the  principal,  may  in 
many  cases  be  pleaded  in  an  action  by  the  agent ;  but  if 
the  agent  suing  is  not  a  mere  agent, — /.  e.,  is  a  person 
such  as  a  factor  or  auctioneer,  who  has  an  interest  in  the 
contract — it  would  seem  that  defenses  against  the  princi- 
pal only  are  not  available  in  an  action  by  the  agent,  (r) 

Rule   i8. — A  person  who  enters  into  a  contract 
in  reality  for  himself,  but  apparently  as  agent 
[144]    for  another  person,  whom  he  does  not  name, 
can  sue  on  the  contract  as  principal,  (s)  * 

(«"!  Semenza  v.  Brinsley,  34  L.  J.  163,  C.  P.,  per  CURIAM.  See  Dresser  v. 
Norwood.  17  C.  B.,  N.  S.,  466  ;  34  L.  J.  48,  C.  P. 

{o)  Isberg  v.  Bowden,  8  Exch.  S52. 

(/)  Leake,  Contracts,  304;  Cochrane  v.  Greene,  9  C.  B.,  N.  S.,  448  ;  30  L. 
J.  97,  C.  P. 

{q)  2  Geo.  2,  c.  22,  s.  13.     See  8  Geo.  2,  c.  24. 

(r)  Robinson  v.  Rutter,  4  E.  &  B.  954,  24  L.  J.  250,  Q.  B. 

(.f)  Schmaltz  v.  Avery,  i6  Q.  B.  655  ;  20  L.  J.  228,  Q.  B. 

•  J..  "  Every  man  has  a  right  to  you,  A.,  alone  ;  I  will  have  no  deal- 
elect  what  parties  he  will  deal  with."  ing  with  P.,'  and  if  A  assent  to  this, 
Winchester  v.  Howard,  97  Mass.  then  if  P.  sue,  he  will,  if  his  agent 
303.  "  Hence  an  undisclosed  prin-  were  authorized  and  competent  to 
cipal  by  interfering  in  such  a  case  bind  him,  be  estopped  by  his 
must  do  so  subject  to  whatever  agent's  act."  Wharton  on  Agency 
equities  bear  upon  the  ostensible  and  Agents,  ^  431. 
principal.  It  is  true  that  where  the  But  in  Hamet  v.  Letcher,  37  Ohio 
contract  is  made  with  the  agent,  St.  356,  where  R.  bought  hogs  of 
with  no  conditions  excluding  lia-  H  ,  representing  that  he  was  agent 
bility  to  another,  then  the  undis-  for  L.  &  Co.,  responsible  hog  buy- 
closed  principal  may,  on  disclosing  ers  and  shippers.  R.  paid  H.  about 
himself,  sue.  But  if  the  other  con-  one-third  of  the  money  down  and 
tracting  party  say  '  I  contract  with  received  the  hogs  and  drove  them 


PRINCIPAL    AND    AGENT.  165 

A  person  sometimes  contracts  avowedly  and  on  the 
face  of  the  contract  as  an  agent,  but  in  reality  on  his 
own  behalf,  and  without  regard  to  any  principal.  The 
so-called  agent  is  then  in  reality  not  an  agent,  but  a  per- 
son contracting  for  himself.  If  the  person  so  contracting 
merely  avows  himself  to  be  an  agent,  and  does  not  give 
the  name  of  any  principal  for  whom  he  alleges  himself  to 
be  acting,  he  can  sue  on  the  contract  as  a  principal,  the 
reason  of  this  being,  that  the  defendant  can  not  be  sup- 
posed to  have  entered  into  the  contract  in  reliance  on  a 
principal  whose  name  was  not  known  to  him.  {t) 


\  Rule  19. — A  person  who  contracts,  in  reality  for 
himself,  but,  apparently,  as  agent  for  another  person, 
whose  name  he  gives,  can  not  sue  on  the  contract  as 
principal. 

A.  induces  T.  to  contract  with  him  as  being  the  agent 
and  as  acting  on  behalf  of  a  principal  P.,  whom  A.  names, 
though  in  fact  A.  has  no  authority  to  act  on  behalf  of  P., 
and  is  in  reality  entering  into  a  contract  for  his  own 
benefit.  A.,  under  these  circumstances,  can  not  treat  the 
contract  as  made  with  himself,  and  sue  in  his  own  name 
on   showing  himself  to   be  the  real   principal,  {u)      The 

{/)  Schmaltz  v.  Avery,  i6  Q.  B.  655  ;  20  L.  J.  22S,  Q.  B. 
(«)  Leake.  Contracts,  306.   Sch.naltz  v.  Avery,  16  Q.  B.  655  ;  20   L.  J.   22S, 
Q.  B.  ;  Hickerton  v.  Burrell,  5  M.  &  S.  383. 

to  L.  &  Co.  and  sold  them  as  his  such   agent,   which    representation 

own  and  received  from  them  their  was  wholly  false,  as  R.  well  knew, 

full  value,   it   was  held  that  "this  This,  therefore,  was  not  a  contract 

was   not  a  sale  to  R.   in   his   own  voidable  merely,  but  an  agreement 

right.     He  made  no  proposition  to  wholly  void,  and  under  the  circum- 

buy    in    any    other    way    than    as  stances  the   property   in   the   hogs 

agent.     H.  did  not  agree  to  sell  to  never  passed  from  H.     *     *    * 

any    other    than    L.    &    Co.,    who  Moody    v.    Blake.    117    Mass.    23; 

never  agreed  to  buy  of  him,  and  he  Barker  v.  Dinsmore,  72  Pa.  St,  427  ; 

was  induced  to  sell  solely  by  reason  Saltus  v.   P:verett,   20  Wend.  267  ; 

of  R.'s  representation  that  he  was  Fawcett  v.  Osborn,  32  111.  411. 


1 66  PARTIES     TO    ACTIONS. 

ground  of  the  rule  is  that  T.  did  not  mean  to  contract 
with  A.,  but  meant  tc  contract  with  P.,  and  that  P.  can 
not  by  his  act  turn  a  contract  with  another  person  into  9 

contract  with  himself,  {v) 
[145J  It  may  be  considered  doubtful  whether,  when 

the  contract  is  partly  executed,  A.  can  not,  if  the 
contract  be  not  one  involving  reliance  on  the  personal 
skill  of  P.,  sue  T.  on  showing  that  he  is  the  principal,  and 
after  giving  T.  notice  of  the  fact,  {x) 

A.  contracted  in  writing  with  T.  for  the  purchase  of 
an  estate  expressly  as  agent  of  P.,  named  in  the  contract 
a.s  principal,  but  without  any  authority  from  the  latter, 
and  being  himself  the  real  principal  in  the  transaction, 
and  paid  a  deposit  in  part  payment  of  the  purchase 
money.  It  was  held  that  A.  could  not  maintain  an 
action  to  recover  the  deposit  without  giving  notice  to  T. 
of  his  real  position  as  principal,  {y)  "  Where  a  man,"  it 
is  said  in  this  case  by  Ellenborough,  C.  J.,  "  assigns  to 
himself  the  character  of  an  agent  to  another  whom  he 
names,  I  am  not  aware  that  the  law  will  permit  him  to 
shift  his  situation,  and  declare  himself  to  be  the  principal, 
and  the  other  to  be  a  mere  creature  of  straw.  That,  I 
believe,  has  never  yet  been  attempted.  Now,  on  the  face 
of  this  agreement,  it  is  stated  that  the  plaintiff  made  the 
purchase,  paid  the  deposit,  and  agreed  to  comply  with 
the  conditions  of  sale  for  P.,  and  in  the  mere  character  of 
agent.  Is  not  this  account  of  himself  to  be  taken  fortis- 
sime  contra  proferentem  ;  that  is,  that  he  was  really  treat- 
ing in  the  character  which  he  assigned  to  himself  at  the 
time  of  the  purchase,  and  has  not  the  defendant  with 
whom  the  plaintiff  dealt  as  agent  a  right  still  to  consider 
him  as  such,  notwithstanding  he  would  now  sue  in  the 
character  of  principal?  Supposing  that  he  might,  under 
a  different  state  of  circumstances,  have  entitled  himself  to 
sue  in  his  own  name,  surely  the  defendant  ought  to  have 
had   notice  of  the  plaintiff 's  real   situation    before  ne  is 

{v)  Boulton  V.  Jones,  2  U.  &  N.  564  ;  27  L.  J.  117,  Ex. 
(jr)  Compare  Smith's  Mercantile  Law,  7lh  ed.,  162 
(y)  Bickenon  v.  Bun  ell,  5  M.  &  S.  383. 


PRINCIPAL    AND    AGENT.  167 

subjected  to  an  action  at  the  plaintiff's  suit,  and  while  it 
was  open  to  him  to  make  a  tender."  {z) 

A.  made  a  written  contract  for  the  sale  and  [146] 
delivery  of  the  goods  to  T.,  in  which  he  described 
himself  as  agent  for  P.,  a  named  principal;  and  T.,  after 
having  full  knowledge  that  A.  was  not  an  agent,  as 
described,  but  was  the  real  principal  in  the  transaction, 
accepted  a  part  delivery  of  the  goods  from  A.,  and  paid 
for  them.  It  was  held  that  T.  could  not  afterwards  refuse 
to  receive  and  pay  for  the  remainder,  and  that  A.  might 
sue  in  his  own  name  upon  T.'s  default  in  doing  so.  {a) 

"The  defendant's  counsel  .  .  .  cited  the  case  of 
Bickerton  v.  Burrell,  {b)  as  an  authority  that  the  plaintiff 
could  not  sue  ...  in  his  own  name.  That  case  is 
mdeed,  in  one  respect  stronger  than  the  present,  inas- 
much as  that  was  for  money  had  and  received,  whereas 
this  is  a  case  of  an  executory  contract.  If,  indeed,  the 
contract  had  been  wholly  unperformed,  and  one  which  the 
plaintiff,  by  merely  proving  himself  to  be  the  real  prin- 
cipal, was  seeking  to  enforce,  the  question  might  admit 
of  some  doubt.  In  many  such  cases,  such  as,  for  instance, 
the  case  of  contracts  in  which  the  skill  or  solvency  of 
the  person  who  is  named  as  the  principal  may  reasonably 
be  considered  as  a  material  ingredient  in  the  contract,  it 
is  clear  that  the  agent  can  not  then  show  himself  to  be  the 
real  principal,  and  sue  in  his  own  name ;  and  perhaps  it 
may  be  fairly  urged  that  this,  in  all  executory  contracts, 
if  wholly  unperformed,  or  if  partly  performed,  without 
the  knowledge  of  who  is  the  real  principal,  may  be  the 
general  rule.  But  the  facts  of  this  case  raise  a  totally 
different  question,  as  the  jury  must  be  taken  to  have  found, 
under  the  learned  judge's  direction,  that  this  contract 
has  been  in  part  performed,  and  that  part  i)err()rmance 
accepted  by  the  defendants  with  full  knowledge  that  the 
plaintiff  was  not  the  agent,  but  the  real  principal.  If  so. 
we  think  the  plaintiffs  may  after  that  very  proi)erly  say 

(«)  Ibifl..  386.  387,  per  ELLENBOROunic,  C.  J. 

(fl)  Rayncr  v.  Grote.  15  M.  &  W.  359  ;  16  L.  J.  79.  Kx. 

{b)  5  M.  &  S.  383. 


1 68  PARTIES     TO    ACTIONS. 

that  they  can  not  refuse  to  complete  that  contract 
[147]    bv  receiving  the  remainder  of  the  goods  and  paying 

the  stipulated  price  for  them.  And  it  may  be  ob- 
served that  this  case  is  really  distinguishable  from  Bicker- 
ton  V.  Burrell  {c)  on  the  very  ground  on  which  that  case 
was  decided  ;  for  here,  at  all  events,  before  action  brought 
and  trial  had,  the  defendants  knew  that  the  plaintiff  was 
the  principal  in  tlie  transaction."  {d) 

In  spite  of  some  expressions  used  by  the  judges  in 
deciding  the  two  foregoing  cases,  there  is,  it  is  submitted, 
no  case  showing  that  a  person  who  has  entered  into  a 
contract  for  a  named  principal  can  afterwards  sue  on  that 
contract  in  his  own  name,  on  showing  himself  to  be  the 
principal.  To  allow  him  to  sue  would  be  to  violate  the 
"rule  of  law,  that  if  a  person  intends  to  contract  with  A., 
B,  can  not  give  himself  any  right  under  [the  contract]. "(r) 

(c)  5  M  &  S.  383. 

(d)  Rayner  v.  Grote,  15  M.  &  W,  365,  366,  per  CURIAM. 
{e)  Boulton  v.  Jones,  2  H.  &  N.  565,  per  Pollock,  C.  B. 


PARTNERS    AND    COMPANIES.  169 


CHAPTER  VI. 

PARTNERS    AND  UNINCORPORATED  COMPANIES. 

Rule  20. — A  firm  or  an  unincorporated  company 
can  not  sue  in  its  name  as  a  firm  or  as  a  company, 
but  must  sue  in  the  names  of  the  individual  members 
of  the  firm  or  of  the  company.^ 

A  firm  is  apt  to  be  considered  by  the  pubUc  as  a  cor- 
poration, i.  e.,  as  a  body  distinct  from  the  members  com- 
posing it,  and  possessing  rights  and  incurring  habihties 
distinct  from  those  of  its  members,  {a)  But  a  firm  is 
not,  in  the  courts  of  common  law,  recognized  as  in  any 
way  distinct  from  the  persons  who  compose  it.  Hence, 
the  firm  of  M.  &  Co.,  being  nothing  more  than  the  indi- 
viduals A.,  B.,  and  C,  of  whom  it  consists,  any  change 
amongst  its  members  destroys  its  identity,  and  the  so- 
called  property,  debts,  and  liabilities  of  the  firm  are,  in 
truth,  merely  the  property,  debts,  and  liabilities  of  A.,  B., 
and  C,  who  compose  the  firm,  {b) 

From  this  legal  view  of  a  partnership  or  firm,  it  follows 
that  the  rules  which  apply  to  actions  by  or  against  mem- 
Ders  of  a  firm,  that  is,  persons  who  in  ordinary  language 
are  called  partners,  equally  apply  to  the  proceedings  01 
persons   who  'are  partners  in  one  particular  transaction 

(a)  See  (.'hapter  VII. 

(h)   I  Linflley,  Partnership,  2n(l  e<l.,  20S,  209.     Richardson  v.  IJank  of  Eng 
land.  4  Myl.  &  Cr.  171.  172  ;  De  Tastet  v.  Shaw,  i  B.  .S:  Ahl.  664. 

I.  All  the  members  of  the  firm  teau    v.   Raitt,    20    Ohio,    144.     A 

must  be  named  as  plaintiffs  unless  managing   partner  cannot  sue   for 

they  are  dormant  parties.     Wright  all.     Krainerd  v.  Bertram,  5  Abb. 

V.Williamson,  3  N  J.  L.  978  ;  Smith  N.  C.  193;  Halliday  v.  Doggett,  6 

V.  Crichton,  33  Md.  106  ;  Am.  Cent.  Pick.  350. 
Ry.  Co.  V.  Milas,  52  111.  178  ;   Cho- 


I/O  PAR'J7ES     TO    ACTIONS. 

only,  {c)  and  who,  therefore,  miglit  not  generally  be  con- 
sidered as  tornnng  a  partnership. 
[149]  The  member  of  a  partnership  is,  at  law  as  in  com- 

merce, the  agent  of  the  firm  for  transacting  its  busi- 
ness, and,  therefore,  every  partner  fills  the  character  both 
of  a  principal  and  of  an  agent,  {d) 

An  "  unincorporated  company "  is  fundamentally  a 
large  partnership,  {c)  from  which  it  differs  mainly  in  the 
following  particulars,  viz.,  that  it  is  not  bound  by  the 
acts  of  the  individual  partners,  but  only  by  those  of  its 
directors  or  managers  ;  (/)  that  shares  in  it  are  trans- 
ferable ;  {g)  and  that  it  is  not  dissolved  by  the  retirement, 
ileath,  bankruptcy,  &c.,  of  its  individual  members,  {h) 

It  follows,  from  the  characteristics  of  a  firm,  that  an 
action  by  a  partnership,  whether  trading  under  the  name 
of  M.  &  Co.,  or,  e.  g.,  of  the  Royal  Mining  Company,  must 
be  brought  in  the  names  of  A.,  B.,  C,  &c.,  who  compose 
the  partnership,  {i)  And  this  holds  good  even  though  the 
company  consists  of  a  hundred  persons. 

The  difficulty  which  this  rule  places  in  the  way  of 
actions  on  contract  {k)  by  unincorporated  companies,  has 
led  to  many  futile  attempts  to  evade  it ;  e.  g.,  by  bringing 
actions  in  the  name  of  the  chairman  or  of  the  directors 
pro.  tem.,  (/)  or  of  some  servant,  e.  g.,  the  purser  {m)  of 
the  company. 

The  shareholders  in  a  cost-book  mining  company 
agreed  "  that  calls  in  arrear  should  be  considered  to  be 
debts  due  from  the  defaulting  shareholder  to  the  pur^ser ;" 
but  an  action  brought  against  the  defaulter  by  the  purser 

(c)  Hill  V.  Tucker,  i  Taunt.  7  ;  Osborne  v.  Harper,  5  East,  225  ;  H"tsall  v. 
Griffith,  4  Tyr.  4S7. 

{d)  Story,  Partnership,  2nd  ed.,  s.  I.  Cox  v.  Hickman,  8  H.  L.  268  •  30  L. 
J.  125,  C.  P.  ;  Kilshaw  v.  Jukes,  34  L.  J.  217,  Q.  B. ;  3  B.  &  S.  847  ;  BMlen  v. 
Sharp,  L.  R.  I,  C.  P.  86  ;  35  L.  J.  105,  C.  P. 

\_e)  I  Lindley,  Partnership,  2nd  ed.,  495. 

(/)  Ibid.,  249.     Burnes  v.  Pennell,  2  H.  L.  497. 

{g)  I  Lindley,  Partnership,  2nd  ed.,  237,  221. 

(h)  Ibid.,  238,  497. 

(i)  Woolf  V.  City  Steam  Boat  Co..  7  C.  B.  103  ;  18  L   J-  125,  C.  P. 

{k)  Rule  13,  and  Chapter  XXXIV. 

(/)  Phelps  V.  Lyle,  10  A.  &  E.  113. 

<w)  Hybart  v.  Parker,  4  C.  B.,  N.  S.  209  ;  27  L.  J.  120,  C.  P. 


PARTNERS    AND     COMPANIES.  lyi 

was  held  not  to  be  maintainable,  as  being  "  nothing  more 
nor  less  than  the  case  of  a  person  who  is  a  mere 
servant   of  the   company  suing  a  member   of  the    [150] 
company  between  whom  and  himself  there   [was] 
no  privity  of  contract  and  no  consideration."  («) 

Exception  i. — Where  an  unincorporated  company  is  em- 
powered by  statute  to  sue,  &c.,  in  the  name  of  its  public 
officer. 

Some  unincorporated  companies  ip)  are  enabled  to  sue 
(and  liable  to  be  sued)  in  the  name  of  their  public  officer, 
e.  g.,  secretary,  manager,  &c.  ;  and  proceedings  taken  by 
or  against  him  may  be  continued  by  or  against  his  suc- 
cessors. 

Exception  2. — Where  an  unincorporated  company  is  being 
wound  up. 

In  the  case  of  an  unregistered  (/)  company,  the  rourt 
of  chancery  {q)  may,  on  the  company's  being  wound  up, 
make  an  order  vesting  its  property  in  the  official  liquida- 
tor; and,  if  such  an  order  is  made,  he  may  sue  (and  be 
sued)  in  his  official  name,  or  in  such  other  name  as  the 
court  may  direct,  as  the  representative  of  the  company,  (r) 

(«)  Hybart  v.  Parker,  27  I..  J.  122,  C.  P.,  judgment  of  Williams,  J., 
ante. 

(p)  a.  Banking  companies  under  7  Geo.  4.  c.  46  (extended  by  27  &  2S  Vict. 
c.  32).  b.  Companies  under  Letters  Patent  Act  (7  Will.  4  &  i  Vict.  c.  73).  c. 
Companies  formed  under  private  Acts. 

(p)  See  Companies  Act,  1862  (25  &  26  Vict.  c.  Sq'),  s.  igg,  by  which  an  un- 
registered company  is  defined  as  "  any  partnership,  association,  or  company, 
except  railway  companies  incorporated  by  Act  of  Parliament,  consisting  of  more 
than  seven  members,  and  not  registered  under  this  Act."  A  company  registered 
under  the  previous  Acts  seems,  for  the  purpose  of  winding-up,  to  be  considered 
a  registered  company.  In  re  Torquay  Path  Co.,  32  Beav.  582.  Compare  2 
Lindley,  Partnership,  2nd  ed.,  1491  and  1214.  [t  should  also  be  remarked  that 
•X  company  may  be  registered  under  the  Act  of  1S62  for  the  pur  )ose  of  being 
■wound  up. 

(q)  In  the  case  of  a  mining  company  subject  to  the  jurisdiction  of  the  Stan- 
naries, the  Court  of  the  Vice-Warden  of  the  Stannarie.  ;  and  in  the  case  of  a 
company  registered  in  Ireland,  the  Irish  Court  of  Cliancery  ;  and  of  a  company 
registered  in  Scotland,  the  Court  of  Session.     Comjjanics  Act,  1862,  s.  81. 

(r)  Sec   Ci-mpanics  Act,   1662  (25   &  26   Vict.  c.   8g),  s.  203.     Compare  I 


1/2  PARTIES     TO    ACTIONS. 

[151]  Rule  21. — All  persons  who  are  partners  in 

a  firm,  or  members  of  an  unincorporated  com- 
pany, at  the  time  when  a  contract  is  made  with  the 
firm  or  the  company,  should  join  in  an  action  for 
the  breach  of  it. 

A  firm  being  merely  the  persons  who  compose  it,  this 
rule  is  simply  an  apphcation  of  the  general  principle  that 
all  the  persons  with  whom  a  contract  is  made  must  join 
in  an  action  for  the  breach  of  it.  {s) ' 

The  rule  is  modified  by  the  existence  of  dormant  and 
nominal  partners. 

A  dormant  partner  is  a  person  who  does  not  appear  to 
be  a  partner,  but  is  so,  and  occupies  the  position  of  an 
undisclosed  principal,  (/)  and  therefore  always  may,  and 
never  need  {u)  join  in  an  action  on  a  contract  made  with 
the  firm. 

The  firm  of  M.  &  Co.  consists  of  A.,  B.,  and  C,  of  whom 
A.  and  B.  are  known  partners,  and  C.  a  dormant  partner. 
If  a  contract  is  made  either  with  the  firm  of  M.  &  Co.  or 
with  A.  on  behalf  of  the  firm  of  M.  &  Co.,  an  action  for 
the  breach  thereof  may  be  brought  either  by  A.  and  B., 
or  by  A.,  B.,  and  C. 

A  nominal  partner  is  a  person  who  appears  to  be  a 
partner,  but  is  not  so.  He  sometimes  must,  and  some- 
times need  not,  jom  in  an  action  on  a  contract  made  with 
the  firm. 

I  St.  If  a  contract  is  made  expressly  with  a  real  and 

Lindley,  Partnership,  2nd  ed.,  1274,  1275.  The  fact  that  a  company  has  stopped 
payment  does  not  prevent  it  from  suing  and  being  sued  by  its  public  officer. 
Davidson  v.  Cooper,  li  M.  &.  W.  778.     i  Lindley,  Partnership,  2nd  ed.,  501. 

{s)  See  Rule  13.  Bullen.  Pleadings,  3rd  ed.,  n.  {a),  227.  See  Phelps  v. 
Lyle,  10  A.  &  E.  113  ;  Garrett  v.  Handley,  3  B.  &  C.  462  ;  Teed  v.  Elworthy 
14  East,  210.      I  Lindley,  Partnership,  2nd  ed.,  477. 

(/)  See  Rule  17.     Exception  5.     Cothay  v.  Fennell,  10  B.  &  C.  671. 

(m)  I  Lindley,  Partnership,  2nd  ed.,  476,  477.  Phelps  v.  Lyle,  ro  A.  &  E 
113  ;  Leveck  v.  Shafto,  2  Esp.  468. 


PARTNERS    AND     COMPANIES.  173 

with    a   nominal   partner,    they    must  join    in    suing   on 
it.  {x) 

2ndly.  Prima  facie,  a  nominal  partner  ought  [152] 
to  join  in  suing  on  any  contract,  whether  express 
or  impUed,  made  with  the  firm  ;  for  an  agreement  with 
the  firm  is  prima  facie  an  agreement  with  the  persons 
who  apparently  make  up  the  firm.  But  if  it  be  dis- 
tinctly shown  that  a  person  who  is  apparently  the  mem- 
ber of  a  firm  is  in  reality  not  so  {i.  <?.,  that  he  is 
merely  a  nominal  partner),  a  contract  made  with  the  firm 
is  not  in  reality  made  with  him,  and  he  need  not  join  ir 
suing  upon  it.  [y) 

3rdly.  It  is  an  open  question  whether  a  nominal  partner 
can  join  in  cases  in  which  it  has  been  established  that 
there  is  no  necessity  for  his  joining,  {z)  As  a  mis-joinder 
{a)  is  a  much  less  serious  error  than  a  non-joinder  of  plain- 
tiffs, a  nominal  partner  should,  as  a  matter  of  prudence, 
join  in  all  actions  on  contracts  made  with  the  firm. 

A  partner  or  member  of  an  unincorporated  company 
can  not  join  in  suing  on  any  contract  made  before  he 
joined  the  firm  or  company,  {b)  since  he  was  not  one  of 
the  parties  with  whom  the  contract  was  made. 

He  can,  indeed,  sue  on  a  bill  or  note  transferable  by 
delivery,  which  was  given  to  the  firm  before  he  became 
a  member  of  it ;  for,  in  such  a  case,  the  plaintiffs  sue,  not 
as  partners,  or  as  the  persons  with  whom  the  contract  was 
made,  but  as  being  the  holders  of  the  bill  or  note,  {c) 

Suppose,  again,  that  a  debt  is  due  to  the  firm  of  A.  & 
B.,  and  that  C.  joins  them  as  partner;  A.,  B.,  and  C.  may 
sometimes  sue  X.,  the  debtor,  for  the  debt  due  to  the  old 
firm  of  A.  &  B.     But  they  can  do  this  only  when  X.  has 

(jr)  (luidon  v.  Robson,  2  Camp.  302.  Compare  Teeil  v.  Elwortliy,  M 
East,  210. 

(y)  Compare  Teed  v.  Elworlhy,  14  East,  210,  with  Kell  v.  Nainby,  10  15.  & 
C.  20. 

(?)  See  in  the  afTirmative,  Collyer,  Partnership,  4^)7;  in  the  ne^'niive,  I 
I.indlcy,  I'artnership,  2nd  ed.,  479.     Compare  Bond  v.  I'ittard,  3  M.  &  W.  357. 

(a)  See  (  hapter  XXXIV. 

{b)  Wiisford  V.  Wood,  i  Esp.  182  ;  Oid  v.  I'orlal,  3  Camp.  239.  I  Lindley. 
P»rtnership,  2nd  ed.,  489,  490. 

(c)  Ibid.,  4'_)0. 


174  PARTIES     TO    ACTIONS. 

either  expressly  or  by  his  coiuliict  contracted  to  pay  to 
the  new  fn m  ol"  A.,  B.,  (S:  C.  the  debt  due  to  the  old 
[153]  firm  of  A.  Sl  B.  A.,  B.,  and  C,  therefore,  sue, 
not  in  respect  of  the  debt  due  to  A.  and  B.,  but  in 
respect  of  a  new  contract  made  with  A.,  B.,  and  C.  after 
C.  joined  the  firm,  {d) 

A  retired  partner  or  member  of  an  unincorporated  com- 
pany must  sue  on  every  contract  made  whilst  he  was  a 
partner  of  the  firm  or  member  of  the  company,  {e) 

Exception. — One  partner  must  or  may  sue  alone  on  con- 
tracts made  with  him  on  behalf  of  the  firm  in  the  same 
cases  in  wliich  an  agent  must  or  may  sue  on  contracts  made 
witii  iiim  on  behalf  of  his  principal.   (/) 

Each  partner  is  an  agent  of  his  co-partners  within  the 
scope  of  the  partnership  business.  Hence,  he  must  sue 
alone  on  contracts  made  with  the  firm  (his  principals)  in 
cases  in  which  an  action  must  be  brought  in  the  name  of 
an  agent,  and  can  not  be  brought  in  the  name  of  a  prin- 
cipal. He  must  sue  alone  when  he  is  contracted  with  by 
deed  in  his  own  name  {g)  when  he  is  made  the  party  to  a 
bill  of  exchange,  &c.,  {h)  or  where  the  right  to  sue  upon  a 
contract  is,  by  the  terms  or  circumstances  of  it,  expressly 
restricted  to  one  of  several  partners,  {i) 

A  partner,  again,  may  sue  alone  where  a  contract  is 

made  with  him  in  his  own  name.     In  this  case  either  the 

partner  with  whom  the  contract  appears  to  be  made 

[154]    may  sue  as  being  the  party  to  it,  or  the  whole  firm 

{ef)  Moore  v.  Hill,  Peake,  Add.  Cases,  10  ;  i  Lindley,  Partnership,  2nd 
td.,  491. 

(e)  Dobbin  v.  Foster,  i  C.  &  K.  323. 

{/)  See  Rule  17.     Exceptions  1-7,  ante. 

{g\  Rule  17.     Exception  i. 

{k)  Ibid.  Exception  2.  Compare,  however,  as  to  the  dififeience  between 
bills  indorsed  in  blank,  on  which  any  holder  may  sue,  and  bills  specially  in- 
dorsed, on  which  the  persons  named  as  drawers,  indorsees,  &c.,  must  sue.  Law 
/.  Parnell,  29  L.  J.  17,  C.  P.  ;  7  C.  B.,  N.  S.  2S2  ;  Machell  v.  Kinnear.  i  Stark- 
(99;  Guidon  v.  Robson,  2  Camp.  302  ;  Bawden  v.  Howell,  3  M.  &  G.  6381 
Phelps  V.  Lyle,  10  A.  &  E.  113  ;   i  Lindley,  Pait;iership,  2nd  ed.,  474. 

(i)  Rule  17.  Exception  3.  Lucas  v.  De  la  Cour,  i  ^L  &  S.  349.  Compare 
Robson  V.  Drumniond,  3  B.  &  Ad.  303  ;  Humble  v.  Huiifer,  12  Q.  B.  310  ;  i; 
L.  J.  350,  Q.  B. 


PARTNERS    AND     COMPANIES.  175 

may  sue  as  being  the  persons  really  interested  in  it. 
(J)  The  principle,  in  short,  to  be  kept  hrmly  in  mind 
is,  that  each  partner  being  an  agent  for  the  firm,  the 
question,  whether  he  must  or  may  sue  without  joining 
his  co-partners,  is  in  reality  nothing  but  the  inquiry, 
whether  an  agent  must  or  may  sue  on  a  contract  made 
with  him  on  behalf  of  his  principal. 

Set-off. — Debts  due  from  one  partner,  A.,  can  not  be 
set-ofF  against  debts  due  to  the  firm,  A.,  B.,  and  C,  nor 
can  debts  due  from  the  firm,  A.,  B.,  and  C,  be  set-off 
against  debts  due  to  one  partner  A.  {k) 

This  principle  is  subject  to  exceptions.  » 

The  first  is,  that  where  one  partner  is  or  has  become 
{e.  g.,  by  the  death  of  his  co-partners)  the  only  person 
capable  of  suing  for  a  debt  due  to  the  firm,  the  debtor 
can  set-off  a  debt  due,  not  from  the  firm,  but  from  the 
partner  individually.  A.,  for  example,  is  the  only  sur- 
viving partner  of  the  firm  of  A.,  B.,  and  C. ;  A.,  there- 
fore, has  become  the  only  person  who  can  sue  for  debts  due 
to  the  firm.  (/)  X.,  the  debtor,  can,  in  an  action  by  A.,  set- 
off debts  due  to  him,  not  from  the  firm  of  A.,  B.,  and  C, 
but  from  A.  individually,  {m) 

The  second  is,  that  if  the  firm  have  allowed  one  of  the 
partners,  A.,  to  enter  into  a  contract  as  if  he  were  the 
only  person  with  whom  the  contract  was  made,  X., 
the  other  contracting  party,  may  set-off  against  the    [155] 
debt   due  to  the  firm,  debts   due  to  him  from  A. 
individually.  («)  {0) 

(j)  Skinner  v.  Stocks,  4  B.  &  Aid.  437  ;  Garrett  v.  Ilandley.  4  B.  &  C.  664  ; 
Cothay  v.  Fennell,  10  B.  &  C.  6yi  ;  Alexander  v.  Barker,  2  C.  &  J.  133.  See 
Rule  17.     Exception  4. 

{/.-)  Owen  V.  Wilkinson,  5  C.  B.,  N.  S.,  526;  2S  L.  J.  3,  C.  P.  A  debt  due 
from  partners  on  a  joint  and  several  obligation  (<».  g..  a  promissory  note),  may 
alw-iys  be  treated  as  a  debt  due  from  each  of  ihe  partners  separately.  Hence, 
if  A.  bring  an  action  for  a  debt  due  to  him  individually,  a  debt  due  from  A., 
B^  and  C.  on  their  joint  and  several  promissory  note  may  be  set  off  against  A.'s 
claim.     I  Lindley,  Partnership,  2nd  ed.,  516,  517. 

(/)  See  Rule  16, 

(/w)  French  v.  Andrade,  6  T.  R.  582  ;  Slipper  v.  Sid>tone,  5  T.  R.  493. 

(«)  Gordon  v.  Kllis.  2  C.  B.  821  ;  15  L.  J.  17S,  C.  P.  ;  Rama/.otli  v.  Bowring, 
7  C.  B.,  N.  S.,  851.     See  i  Lindley,  Partnership,  2nd  ed.,  514-520 

{o)  "  If  a  partner   being  indebted   to  a  person  who  is  indei)ted    to  the  firm. 


176  PARTI  HS     TO    ACTIONS. 

Rule  22. — One  partner  or  member  of  an  unin- 
corporated company  can  not  sue  another  upon  any 
matter  involving  the  accounts  (/)  of  the  partnership 
or  company. 

The  technical  ground  of  this  rule  is,  that,  in  an  action 
on  any  matter  involving  the  partnership  accounts,  all  the 
members  of  the  firm  must  be  either  plaintiffs  or  defend- 
ants ;  and  if,  therefore,  such  an  action  were  brought  by 
or  against  a  partner,  the  same  person  would  appear  both 
as  plaintiff  and  as  defendant.  If,  for  example,  A.  were  to 
sue  the  firm  of  A.,  B.,  and  C,  for  the  price  of  work  and 
labor  done  for  it,  iq)  for  a.  share  of  the  profits,  (r)  on  a  bill 
accepted  in  the  name  of  the  firm,  {s)  or  for  money  which 
he  had  been  compelled  to  pay  for  the  firm,  (/)  the  action 
would  be  an  action  brought  by  A.  against  A.,  B.,  and  C, 
/.  e.^  A.  would  be  both  plaintiff  and  defendant ;  and,  as 
already  pointed  out,  {ti)  the  same  person  can  not  occupy 
at  once  the  position  both  of  plaintiff  and  of  defendant.  On 
the  same  ground,  if  A.  is  a  partner  in  two  firms  {e.  g.,  A., 

B.,  &  C,  and  A.,  X.  &  Y.),  neither  firm  can  sue  the 
[156]    other  on  a  contract  made  between  them,  ix)  nor, 

after  A.'s  death,  can  either  firm  sue  the  other  on  a 
contract  made  between  them  whilst  he  was  a  partner  in 
both  ;  (jj/)  nor  if  the  firm  of  A.,  B.,  &  C.  become  indebted 


agrees  with  him  that  one  debt  shall  be  set-off  against  the  other,  and  the  two 
settle  their  accounts  together  on  this  footing,  the  firm  is  bound  by  this  transac- 
tion, and  the  debt  owing  to  it  is  extinguished."  Ibid.  517.  Wallace  v.  Kelsall, 
7  M.  &  W.  264. 

(/)  Smith,  Mercantile  Law,  7th  ed.,  34,  35  ;  2  Lindley,  Partnership,  2nd 
ed.,  878-883. 

{q)  Holmes  v.  Hic^gins,  i  B.  &  C.  74. 

(r)  Bovill  V.  Hammond.  6  B.  &  C.  149. 

(j)  Neale  v.  Turton,  4  Bing.  149.  •    . 

(/)  Sadler  V.  Nixon,  5  B.  &  Ad.  936. 

(«)  See  Rule  5. 

{x)  Moffat  V.  Van  Millingen,  2  B.  &  P.  124  ;  Mainwaring  v.  Newman,  Ibid. 
120. 

{y)  2  Lindley,  Partnership,  2nd  ed.,  883.  Bosanquet  v.  Wray,  6  Taunt. 
5Q7. 


PARTNERS    AND     COMPANIES.  177 

to  M.,  and  M.  dies,  leaving-  A.  his  executor,  can  A., 
even  as  executor,  bring  an  action  for  the  debt  due  to 
M.  {z) 

Companies  etnpowered  to  sue. — These  companies  are 
merely  partnerships  endowed  with  the  right  of  suing  and 
being  sued  in  the  name  or  a  public  officer. 

If  this  officer  {e.  g.,  the  secretary)  represents  each  of 
the  members  of  the  company,  he  can  no  more  sue  a  mem- 
ber than  one  partner  can  sue  another,  since  he  represents 
as  much  the  person  sued  as  the  person  suing,  and  there- 
fore would  occupy,  in  an  action,  the  position  at  once  of 
plaintiff  and  of  defendant,  {a) 

Modern  Acts  of  Parliament  generally  make  the  officer 
the  representative  of  the  company,  as  distinguished  from 
its  members.  Where  this  is  done,  legal  proceedings 
between  the  public  officer  and  individual  members  are  as 
unobjectionable  as  proceedings  between  incorporated 
companies  and  their  shareholders,  {b) 

There  is,  however,  great  difficulty  m  tne  way  of  an 
action  by  a  shareholder  against  an  unmcorporated  com- 
pany, at  any  rate,  for  declared  dividends  ;  since,  "  even 
if  the  company  be  empowered  to  sue  and  be  sued 
by  a  public  officer,  and  an  action  by  a  shareholder  [157] 
against  him  for  a  dividend  declared  and  payable 
might  possibly  lie,  there  would  be  very  great  not  to  say 
insuperable  difficulties  in  executing  a  judgment  obtained 
by  the  plaintiff  in  such  an  action."  {c) 

The  rule,  it  must  be  remembered,  has  no  application 


(2)  Moffat  V.  Van  Millingen,  2  B.  &  P.  124.  The  rule  applies  to  persons 
who  are  partners  in  a  particular  venture. 

{a)  2  I-indley,  Partnership,  2nd  ed.,  858.  Hichens  v.  Congreve,  4  Russ. 
562  ;  McMahon  v.  Upton,  2  Sim.  473  ;   Hughes  v.  Thorpe,  5  M.  &  W.  656. 

(i>)  2  Lindley,  Partnership,  2nd  ed.,  858.  Wills  v.  Sutherland,  4  Ex.  211  ; 
18  L.  J.  450,  Ex.  ;  5  Ex.  q8o;  20  L.  J.  28  Ex.  (Ex.  Ch.)  ;  Reddish  v.  Pinncck, 
10  Ex.  213  ;  Smith  v.  Goldsworthy,  4  Q.  IJ.  430;  11  L.  J.  151,  Q.  H.  ;  Chapman 
V.  Milvam,  5  Ex.  6r  ;  19  L.  J.  228,  Ex.  It  is  settled  that  one  public  oflicer  of 
a  banking  company  under  7  (Jeo.  4,  c.  4f,  is  the  proper  person  to  sue  a  sliare- 
holder  for  calls.     2  Lindley,  Partnership,  2!id  ed.,  858. 

(<•)  2  Lindley,  Partnership,  2nd  fd.,888,  889.     The  difficulty  as  to  executin;^ 
the  judgment  seems  to  apply  to  ail  actions  against  an  unincorporated  company 
by  a  shareholder. 
12 


178  PARTIES     TO    ACTIONS 

to  actions  by  one  partner  against  another,  in  respect  of 
matters  unconnected  with  the  partnership  business,  {d) 

The  rule,  again,  has  no  application  to  persons  who  are 
not  actually  partners. 

Hence,  actions  are  constantly  brought  on  agreements 
for  partnership.  If,  for  example,  the  member  of  a  firm 
agrees  to  introduce  a  stranger,  an  action  lies  for  a  breacu 
of  the  contract,  {e) 

Exception  i. — Where  there  is  an  agreement  which,  though 
relating  to  partnership  business,  can  be  treated  as  separate 
and  distinct  from  other  matters  in  question  between  the 
partners. 

Under  this  exception,  which  includes  many  different 
cases,  a  partner  may  often  sue  his  fellow-partners. 

Thus  an  action  can  be  brought  by  one  partner  against 
another  for  the  breach  of  a  covenant  or  express  agreement 
entered  into  by  his  co-partner,  not  by  the  firm,  with  him. 
{/)  He  can,  again,  maintain  an  action  against  his  co- 
partners for  the  non-performance  of  a  written  agreement 
to  render  accounts  and  divide  profits,  {g)  for  rent  cov- 
enanted to  be  paid,  (//)  or  for  not  indemnifying  him  against 
a  debt,  (z)  and  he  can  often  sue  his  co-partners  on  a  bill 

of  exchange. 
[158]  If  a  bill  or  note  is  given  to  A.  by  his  partners, 

B.  and  C,  in  such  a  form  as  not  to  bind  the  firm, 
but  to  bind  B.  and  C,  A.  can  sue  them  on  the  bill,  even 
though  it  had  reference  to  a  partnership  transaction  ;  for 
A.  is  a':knowledged  by  the  bill  to  have  a  claim  against  B. 
and  C.  independent  of  any  claim  which  they  have  against 


{(1)  2  Lindiey,  Partnership,  2nd  ed.,  873,  875. 

{e)  McNeill  v.  Reid,  9  Bing.  68  ;  Gale  v.  Leckie,  2  Stark.  107  ,  Andrews  v. 
Garstin,  lo  C.  B.,  N.  S.,  444  ;  31  L.  J.  15,  C.  P.  Compare  Lindiey,  Partner- 
ship, 2nd  ed.,  863,  864. 

(/)  See  Lir  lley,  Partnership,  2nd  ed.,  869,  870;  BuUcn,  Pleadings,  3rd 
ed.,  229. 

{g)  Owston  V.  Ogle,  13  East,  538. 

(h)  Bedford  v.  Brutton,  i  B.  N.  C.  399. 

(f)  Want  V.  Reece,  i  Bing.  18  ;  2  Lindiey,  Partnership,  2nd  ed.,  870. 


PARTNERS    AND     COMPANIES.  179 

him  ;  {k)  but  if  a  bill  is  accepted  in  such  a  manner  as  to 
bind  the  firm,  a  partner  can  not  sue  his  co-partners  upon 
it.  (/) 

A  partner  further  can  sue  his  co-partner  for  a  breach 
of  a  contract  to  furnish  capital,  (m)  or  for  not  contributing 
the  share  which  he  had  agreed  to  contribute  to  the 
partnership  expenses,  (;/)  and  can  bring  an  action  against 
his  fellow-partners,  where  the  partnership  has  been  dis- 
solved, and  it  has  been  agreed  that  they  should  take  his 
share  of  the  partnership  property  at  a  certain  value,  for 
t/ie  amount  of  the  valuation  ;  {o)  for  a  final  balance  struck 
ifter  a  statement  of  accounts  ;  {p)  for  money  received  to 
nis  use,  {q)  or  for  money  of  his  own  placed  in  their  hands 
for  a  specified  partnership  purpose,  and  no  other,  and 
misapplied,  (r)  So,  he  can  sue  them  on  an  agreement  to 
indemnify  him  in  respect  of  some  particular  transaction, 
(j)  and  for  contribution  in  respect  of  a  particular  loss.  (/) 

Exception  2. — Where  the  matters  in  respect   of  which    [159J 
an  action  is  brought  are  connected  with  the  partnership 
business  only  through  the  wrongful  act  of  the  partner  sued,  {u) 

Where  one  partner  received  money  to  the  use  of  an- 
other and  paid  it  to  the  firm,  it  was  held  that  he  might  be 
sued,  for  he  was  bound  to  hand  the  money  over  to  his 

{k)  Neale  v.  Turton.  4  Bing.  149,  Esp.,  judgment  of  Best,  C.  J.,  151  ;  Hcy- 
wood  V.  Watson,  4  Bing.  496;  Beecham  v.  Smith,  E.  B.  &  E.  4^2  ;  27  L.  J. 
257.  Q.  B.,  E^p.,  judgment  cif  Crompton,  J.,  260. 

(/)  Neale  v.  Turton,  4  Bing.  149,  15 1  ;  Moffat  v.  Van  Millingen,  2  B.  &  P. 
124.     Byles,  Bills,  Sih  ed.,  38,  39. 

(w)   llesketh  v.  Blanchard,  4  East,  144. 

(«)  Brown  v.  Tapscoit,  6  M.  &  W.  119;  French  v.  Styring,  2  C.  B.,  N.  S, 
357  ;  26  L.  J.  181,  C.  P.,  Esp.,  judgment  of  Cockburn,  C.  J.  ;  2  C.  B.,  N.  S., 
364,  365  ;  26  L.  J.  183,  C.  P.  ;  Elgie  v.  Webster,  5  M.  &  W.  518. 

(0)  Jackson  v.  Stopherd,  Cr.  &  M.  361. 

(/  )  Moravia  v.  Levy,  2  T.  R.  483  ;  Foster  v.  Allanson;  2  T.  R.  479. 

( (/)  Graham  v.  Robertson,  2  T.  R.  282. 

(r)  Wright  v.  Hunter,  I  East,  20. 

(s)  Coffee  V.  Briat),  3  Bing.  54. 

(/)  Sedgwick  v.  Daniell.  2  H.  &  N.  319;  27  L.  J-  I'^J.  Ex.  For  cases  in 
which  partner  may  sue  his  fellow-partner,  see  2  Lindley,  Partnership,  2nd  ed.. 
868-876. 

(«)  2  Lindley,  Partnership,  2nd  cd.,  873. 


iSo  PARTIES     TO    ACTIONS. 

co-partner:  (.r)  and  so  where  a  partner,  in  fraud  of  his 
co-partnors,  gave  a  note  in  the  name  of  the  firm  for  a 
private  debt  of  his  own.  and  his  co-partners  were  com- 
pelled to  pay  the  note,  he  was  held  liable  to  them  for  all 
which  they  had  been  compelled  to  pay ;  (j/)  since,  "  if  a 
person  who  owes  a  debt  to  A.,  b}'  any  contrivance  causes 
B.  to  pay  it,  the  action  for  money  paid  will  lie  to  recover 
back  the  amount,  and  the  machinery  by  which  the  mischief 
was  brought  about  is  utterly  immaterial."  {z) 


Rule  23. — Actions  for  breaches  of  contracts 
made  with  a  firm  must  be  brought  : — 

1.  On  the  bankruptcy  of  the  firm,  by  the  trustee 
(«)  or  trustees  of  the  bankrupts,  {b) 

2.  On  the  bankruptcy  of  one  or  more  partners,  by 
the  solvent  partners,  together  with  the  trustee,  or 
trustees  of  the  bankrupt  partner  or  partners. 


The  expression  "  bankruptcy  of  a  firm  "  means 
[160]  nothing  more  than  the  bankruptcy  of  all  the  per- 
sons who  make  up  the  firm. 

If  all  the  partners,  A.,  B.,  and  C,  are  bankrupt,  any 
action  which  but  for  the  bankruptcy  would  have  been 
brought  in  their  names,  and  therefore,  any  action  on  a 
contract  v.ith  the  firm,  must  be  brought  by  the  trustee 
or  trustees  of  the  bankrupts. 

The  propertv  of  the  different  bankrupts  will  generally, 
under   the    Bankruptcy    Act,   1869,  {c)  vest   in  the  same 

(jr)  Smith  v.  Barrow,  2  T.  R.  ^76. 

( )')  Cross  V.  C;iieshire,  7  Excli.  43  ;  21  I,.  ].  3,  Ex. 

(z)  Ibid.,   per  PoLLOCK,   C.  B.      Conf.   llailbut   v.   Nevill,   L.   R.  4,   C.  P. 

354- 

{a)  The  term  "'the  trii>tee  "  is  suhstiiuled  by  the  Bankruptcy  Act,  l86g, 
for  the  expression  "  assi;;nee  in  bankruptcy."  Whenever  a  trustee  in  bank- 
ruptcy is  referred  to,  he  is,  to  distinguisli  liim  from  an  ordinary  trustee,  described 
as  the  trustee. 

(b)  Partners,  like  other  persons,  can,  of  course,  after  bankruptcy,  bring 
actions  in  which  they  sue  merely  as  trustees  for  other  people.  See  Chapter 
IX.,  post. 

(c\  32  &  33  Vict.  c.  71,  s.  102. 


PARTNERS    AND     COMPANIES.  i8i 

trustee ;  but  if  a  separate  trustee  should  be  appointed  for 
each  of  the  partners,  all  the  trustees  must  join  in  an  action 
on  contracts  with  the  partnership,  {d) 

The  effect  of  the  bankruptcy  of  one  partner  is  to 
dissolve  the  firm,  both  as  regards  the  bankrupt  and  as 
regards  the  partners  inter  se,  and  to  make  the  trustee  a 
tenant  in  common  (not  a  co-partner)  with  the  solvent 
partner  of  all  the  partnership  property,  {e)  Hence  any 
action  which  but  for  the  bankruptcy  of  one  of  the  part- 
ners, C,  would  have  been  brought  by  A.,  B.,  and  C, 
must  after  his  bankruptcy  be  brought  in  the  names  of 
A.  and  B.,  the  solvent  partners,  and  the  trustee  of  the 
bankrupt  C.  (/)  It  should  further  be  noticed  that  owing 
to  the  legal  fiction  by  which  the  title  of  the  trustee  dates, 
not  from  the  time  of  C.'s  being  adjudicated  a  bankrupt, 
but  from  the  time  of  the  commission  of  an  act  ot  bank- 
ruptcy, {g)  it  may  happen  that  A.,  B.,  and  the  trustee, 
can  bring  an  action  where  A.,  B.,  and  C.  could  not  have 
sued.  (//) 

The  Bankruptcy  Act,  1869,  enables  the  trustee,  sub- 
ject to  certain  conditions,  to  use  the  names  of  the  solvent 
partners  if  they  are  unwilling  to  bring  an  action. 
{i)     If,  on  the  other  hand,  the  trustee  declines  to    [161] 
join  in  an  action,  the  solvent  partners  may  use  his 
name  upon  indemnifying  him.  (k) 

Unincorporated  Companies. — If  a  company  which  is  em- 
powered to  sue,  &c.,  is  being  wound  up,  actions  may  be 
brought  in  the  name  of  the  officer  empowered  to  sue.  If 
a  company  not  empowered  to  sue,  &c,,  is  being  wound  up, 
it  will  probably  be  registered  for  that  purpose  under  the 
Companies  Act,  1862.  (/)     In  this  case  an  action  may  be 

(d)  Hancock  v.  Haywood,  3  T.  R.  433,  435. 

{e)  2  Lindley,  Partnership,  2nd  ed.,  1100,  IIOI,  II18,  II19. 

(/)  Eckhardt  v.  Wilson,  8  T.  R.  140;  Thomason  v.  Frere,  lO  East,  41S; 
Gr  iham  v.  Robertson,  2  T.  R.  282. 

(.^)  Bankruptcy  Act,  1869,  s.  11. 

(//)  Heilhut  V.  Nevill,  L.  R.  4,  C.  P.  354. 

(0  32  &  33  Vict.  c.  71,  s.  105. 

(k)  Whitehead  v.  Hughes,  2  D.  P.  C.  258  ;  2  Limlk-y,  Partnership,  2nd  ed, 
II  (9. 

{/)  Companies  Act,  1862,  s.  180;  2  Lindley,  Partnership,  2nd  ed.    I2iq. 


1 82  PARTIES     TO    ACTIONS. 

brought  either  in  the  name  of  the  official  liquidator  or  m 
such  other  name  as  the  court  may  direct.  (;;/) 

"  The  doctrine  that  by  the  bankruptcy  of  one  member 
of  a  firm  the  whole  firm  is  dissolved,  is  not,  it  seems, 
applicable  to  mining  partnerships ;  (;/)  and  although  the 
bankruptcy  ol  a  shareholder  in  an  unincorporated  com- 
pany with  transferable  shares  may  dissolve  the  company 
as  to  him,  [o)  it  is  conceived  that  such  bankruptcy  does 
not  dissolve  it  as  to  the  other  shareholders  in  ter  se  ;  "  (/) 
and  though  the  trustee  becomes,  on  the  bankruptcy  of  a 
shareholder,  entitled  to  his  shares,  he  does  not  become  by 
the  mere  bankruptcy  a  shareholder,  (g) 

It  would  seem  that  on  the  bankruptcy  of  a  member  of 
an  unincorporated  company,  provided  it  be  one  not  em- 
powered to  sue  by  an  officer,  actions  on  contracts  made 
before  the  bankruptcy  should  be  brought  in  the  name  of 
the  solvent  members  and  of  the  trustee,  {r) 

[162]  Rule  24. — On  the  death  of  a  partner,  the 

surviving  partners  and  ultimately  the  last  sur- 
vivor, or  his  representative,  must  sue  on  contracts 
made  with  the  firm. 

A.,  B.,  and  C,  are  partners,  C.  dies,  an  action  on  any 
contract  made  with  the  firm,  i.  e.,  with  A.,  B.,  and  C, 
must  be  brought  by  A.  and  B.,  and  the  representatives 
of  C.  can  not  join,  [s) 

The  same  rule  appears  to  hold  good  with  regard  to 
unincorporated  companies,  supposing  of  course  that  these 
companies  are  not  empowered  to  sue  by  a  public  officer. 

(w)  Companies   Act,  1862,   s.   203  ;  2   Lindley,  Partnership,  2n(l   ed.,   1274, 

t275- 

(w)  Ex  parte  Broadbent,  i  Mont.  &  A.  638. 

(0)  Greenshield's  Case,  2  De.  G.  &  S.  559. 
{f>)  2  Lindley,  Partnership,  2nd  ed.,  iioi. 

(t/)  Ibid,     Conf.  Bankruptcy  Act,  1869,  s.  23. 

(r)  But  see  Baii'kruptcy  Act,  1869,  s.  23. 

(j)  See  Rule  16. 


INCORPORATED    BODIES.  183 


CHAPTER  VII. 


CORPORATIONS    AND    INCORPORATED    BODIES. 

Rule  25. — A  corporation  or   incorporated  body 
must  sue  in  its  corporate  name. 

A  corporation  is  a  fictitious  person,  created  by  law, 
and  endowed  with  a  capacity  to  acquire  rights  and  incur 
obligations  as  a  means  to  the  end  for  the  attainment  of 
which  the  corporation  is  created.  It  may,  and  generally 
does,  consist  of  a  number  of  individual  members,  but  the 
rights  and  obligations  of  these  individuals  are  not  the 
same  as  the  rights  and  obligations  of  the  corporate 
body,  ia)  The  fundamental  distinction,  therefore,  be- 
tween a  partnership  and  a  corporation  or  company  is, 
that  while  the  firm  of  M.  and  Co.  is  nothing  but  A.,  B., 
and  C.  who  compose  the  firm,  a  corporation —  e.  g.,  the 
Royal  Miners'  Co.  (Limited), — is  totally  distinct  from 
A.,  B.,  and  C,  the  members  of  the  company.  It  follows, 
that  while  a  firm  must  sue  in  the  names  of  the  individual 
members,  a  corporation  or  company  must  sue  in  its 
corporate  name,  {b)  It  is  an  illustration  of  the  true 
character  of  a  corporation  that,  its  existence  is  unaffected 
by  the  retirement,  death,  &c.,  of  the  individual  members 
of  it,  and  that  a  corporation  can  sue  and  be  sued  by  its 
own  members. 

O)  Even  in  the  case  of  a  corporation  sole,  e.  g.,  a  bishop,  the  rights  of  ihr 
corporation  are  distinct  from  the  rights  of  the  person  who  constitutes  the  cor- 
poration. :  Lindiey,  Partnership,  2nd  ed.,  4.  Hradshaw  v.  Hank  of  Upper 
Canada,  L.  R.  i,  P.  C.  479  ;  Metropolitan  Saloon  Co.  v.  Hawkins,  2S  L.  J.  201, 
Ex.;  4  II.  &  N.  87. 

{b)  2  Lindiey,  Partnership,  2nd  ed.,  888. 


1 84  PARTliLS     TO    ACTIONS. 

[164J  Ru LK  26. — A  corporation,  or  incorporated 

body,  can  not  sue  on  a  contract  not  under  seal,  (f) 

A  corporation  can  not  sue  on  any  contract  not  under 
seal,  because  a  corporation  can  not,  as  a  general  rule 
(subject,  however,  to  exceptions  which  have  now  grown 
larger  than  the  rule  itself),  id)  enter  into  any  contract, 
binding  either  upon  the  other  party  to  the  agreement 
or  upon  the  corporation,  except  under  its  corporate 
seal. 

"  The  rule  of  law  requiring  contracts  entered  into  by 
corporations  to  be  generally  entered  into  under  seal  and 
not  by  parol,  appears  to  be  one  by  no  means  of  a  merely 

technical  character The  seal  is   required  as 

authenticating  the  concurrence  of  the  whole  body  corpor- 
ate, ....  either  a  seal  or  some  substitute  for  a  seal, 
which  by  law  shall  be  taken  as  conclusively  evidencing 
the  sense  of  the  whole  body  corporate,  is  a  necessity  in- 
herent in  the  very  nature  of  a  corporation."  {e) 

Hence,  an  agreement  to  supply  a  mining  company 
with  n-on  bars,  (/)  a  contract  with  a  water  company  to 
supply  iron  pipes,  (^)  an  engagement  by  a  corporation  to 
pay  an  increased  salary  to  a  town  clerk,  (//)  to  pay  for 
work  done  in  building  a  workhouse,  (?)  and  many  other 
agreements  by  corporations  {k)  have  been  held  invalid,  be- 
cause not  made  under  seal. 

[165 J  Exception  i. — Where   a   corporation    enters    into   a 


(f)  Bacon,  Abr.,  Corporations,  E.  3. 

{d)  South  of  Ireland  Coll.  Co.  v.  Waddle,  L.  R.  3,  C.  P.  474,  judgment  <A 
Montague  Smith,  J. 

(<f)  Mayor  of  Ludlow  v.  Charlton,  6  M.  &  W.  823,  judgment  of  RoLKE,  B. 
See  also  Arnold  v.  Mayor  of  Poole,  4  M.  &  G.  860  ;  12  L.  J.  97,  C.  P. 

(/)  Copper  Miners'  Co.  v.  Fox,  16  Q.  B.  229  ;  20  I>.  J.  174,  Q.  B. 

{g)  East  London  Water  Works  Co.  v.  Bailey,  4  Bing.  283. 

{h)  R.  V.  Mayor  of  Stamford,  6  Q.  B.  433. 

(?")  Lamprell  v.  Billericay  Union,  3  Ex.  283  ;   18  L.  J.  282,  Ex. 

(k)  Paine  v.  Strand  Union,  8  Q.  B.  326  ;  Arnold  v.  Mayor  of  Pcnle,  4  M.  & 
G.    860  ;  Diggle   v.    London   and    Blackvvall    Rail.    Co.,   5   Ex.   442  ;   19   L.    J 
303.  Ex. 


INCORPORATED    BODIES.  185 

contract  concerning  matters  necessarily  incidental  to  the  pur- 
poses of  the  business  of  the  corporation. 

A  corporation  can  sue  (/)  on  contracts  relatnig  to 
matters  of  the  corporation,  since,  "  it  is  now  perfectly 
established  by  a  series  of  authorities  that  a  corporation 
may  with  respect  to  those  matters  for  which  they  are 
expressly  created,  deal  without  seal.  This  principle  is 
founded  on  justice  and  public  convenience,  and  is  in 
accordance  with  common  sense."  {iri)  This  exception, 
though  specially  applicable  to  bodies  constituted  for  the 
sake  of  trade,  {n)  and  though  it  has  been  considerably 
extended  in  order  to  meet  their  convenience,  {p)  appears, 
in  principle,  to  apply  to  all  corporations. 

It  is  often  difficult  to  decide  whether  a  given  contract 
falls  within  the  rule  or  the  exception.  A  contract,  for 
example,  with  a  company  incorporated  for  the  working 
of  collieries  to  supply  them  with  a  pumping-engine  has 
been  held  valid,  though  not  under  seal.  (/>)  So  has  an 
agreement  to  supply  a  steamboat  company  with  pro- 
visions, {q)  and  an  agreement  by  the  same  company  for 
the  carriage  of  a  passenger,  if)  Again,  on  the  same 
principle,  an  agreement  by  a  telegraphic  company  [166] 
to  pay  a  commission  to   an  agent  on  messages  ob- 

il)  A  corporation's  right  to  sue  is,  subject  to  very  slight  exceptions,  strictly 
correlative  to  its  liability  to  be  sued,  /.  e.,  it  can  be  sued  on  contracts  on  which 
it  can  sue,  and  vice  versa/  and  can  not  be  sued  on  contracts  on  which  it  can 
not  sue,  and  vice  versa.  It  is,  therefore,  convenient  to  introduce,  as  exemplifi- 
cations of  the  general  rule,  and  the  exceptions  to  it,  cases  which  directly  refer 
only  to  a  corporation's  liability  to  be  sued. 

(/«)  Australian  Royal  Mail  Co.  v.  Marzetti,  ri  Exch.  234;  ]ier  Pollock, 
C.  B. 

(«)  Clarke  v.  Cuckfield  Union,  i  Bail.  C.  C.  86,  judgmeil  of  Wir.ifT- 
MAN,  I. 

(o)  Henderson  v.  Australian  Royal  Mail  Co.,  5  E.  &  B.  400  ,  24  I-.  J.  322, 
<2.  B.  :  South  of  Ireland  Colliery  Co.  v.  Waddle,  L.  R.  3,  C.  V.  474,  judgment 
of  MoNTAouK  Smith,  J. 

(p)  South  of  Ireland  Colliery  Co.  v.  Waddle,  L.  R.  3,  C.  P.  463.  37  L.  J. 
211,  C.  P. 

(q)  .\uslralian  Royal  Mail  Co.  v.  Marzetti,  II  Exch.  223;  24  L.  J. 
273,  Ex. 

ir)  Henderson   v.  Australian  Royal  Mail  Co.,   5  E.  &  B.  409;  24  L.   J.  32'» 

Q.  n. 


1 86  PARTIES     TO    ACTIONS. 

tained  for  the  company,  {/)  by  a  gas  company  to  supply 
gas,  (/)  for  guardians  to  pay  for  goods  supplied,  {tc)  or  for 
work  done,  {x)  have  been  held  valid,  though  not  made  by 
deed.  But  with  these  cases  should  be  contrasted  othei^s 
(some  of  which  have  been  already  mentioned),  such  as  the 
Copper  Miners'  Co.  v.  Fox,  [y)  where  a  contract,  that  the 
defendant  would  supply  the  plaintiff  with  iron  rails,  was 
held  not  valid,  because  it  was  not  under  seal,  and  had 
not  reference  to  matters  necessarily  incidental  to  the 
business  of  the  company.  "  Had  the  subject-matter  of 
this  coniract  been  copper,  or  if  it  had  been  shown  in  any 
way  to  be  incidental  or  ancillary  to  the  business  of 
copper  miners,  the  contract  would  have  been  binding, 
although  not  under  seal ;  for  where  a  trading  company 
is  created  by  charter,  while  acting  within  the  scope  of 
that  charter,  it  may  enter  into  the  commercial  contracts 
usual  in  such  a  business  in  the  usual  manner.  But  the 
iron  rails,  the  subject-matter  of  this  contract,  were  not 
shown  to  have  any  connection  with  the  business  of  copper 
miners."  {z)  And  similar  to  the  Copper  Miners'  Co.  v. 
Fox  is  the  London  Dock  Co.  v.  Sinnot,  {a)  in  which  it 
was  held,  that  a  contract  with  the  London  Dock  Co.  (a 
corporation  constituted  for  the  purpose  of  carrying  on  a 
particular  trade),  for  cleansing  and  removing  the  filth 
accumulating  in  their  docks,  was  invalid,  because  not 
under  seal.  The  decision  in  this  latter  case  is,  however, 
open  to  some  doubt,  {b) 

[167  j  Exception  2. — Where  the  contract   relates  to  acts  of 

trivial  importance  or  of  constant  recurrence. 

A  corporation  may  sue  on   contracts  not  under  seal 
which  refer  to  matters  of  trivial  importance,  of  frequent 

(j)  Reuter  v.  Electric  Telegraph  Co.,  26  L.  J.  46,  Q.  B.  ;  6  E.  &  B.  341. 
(/)  Church  V.  Imperial  Gas  Co.,  6  A.  &  E.  846. 
(«)  Sandars  v.  St.  Neot's  Union,  8  Q.  B.  810. 

(x)  Haigh  V.  North   Bierly  Union,  28   L.  J.   52,  Q.   B.  ;  E.  B.  &  E.  873 
Nicholson  v.  Bradfield  Union,  L.  R.  i,  Q.  B.  620;  35  L.  J.  176,  Q.  B. 
iy)  16  Q.  B.  229  ;  20  L.  J.  174,  Q.  B. 

(z)  Copper  Miners'  Co.  v.  Fox,  20  L.  J-  177.  Q-  B.,  per  Curiam. 
la)  27  L.  ;,  129,  Q.  B.  ;  8  E.  &  B.  347. 
{b)  South  of  Ireland  Colliery  Co.  v.  Waddle,  L    R.  3,  C.  P.,  463,  471. 


INCORPORATED    BODIES.  187 

occurrence,  or  of  immediate  urgency  ;  so  that  the  making 
these  contracts  in  the  usual  way  with  the  authentication 
of  the  corporate  seal  would  be  inconvenient  and  ab- 
surd, {c)  e.  g.,  agreement  for  the  supply  of  coals,  {d)  or 
of  gas.  {e)  It  has,  however,  been  doubted,  whether  any- 
thing really  turns  upon  the  importance  or  the  frequency 
of  the  matters  to  which  a  contract  relates,  (/)  and  this 
exception  must,  therefore,  it  would  appear,  be  looked 
upon  simply  as  an  extension  of  the  first  exception. 

Exception  3.— Where  the  consideration  {g)  for  the  contract 
IS  executed  on  the  part  of  the  corporation. 

"  Whatever  may  be  the  consequences  where  the  agree- 
ment is  entirely  executory  on  the  part  of  the  corporation, 
yet  if  the  contract  instead  of  being  executory  is  executed 
on  their  part,  if  the  persons  who  are  parties  to  the 
contract  have  received  the  benefit  of  the  consideration 
moving  from  the  corporation,  (//)  in  that  case,  .  .  ^ 
both  upon  principle  and  decided  autl^orities,  the  other 
parties  are  bound  by  the  contract  and  liable  to  be  sued 
thereon  by  the  corporation."  {%) 

This  exception  is  less  firmly  established  than  the 
others,  {k)  and  has  no  application  to  actions  against   [168] 
corporations.  (/) 

(<:)  Diggle  v.  London  and  Blackwall  Rail.  Co.,  5  Exch.  450,  judgment  of 
Alderso.n',  B. 

'd)  Nicholson  v.  Bradfield  Union,  L.  R.  i,  Q.  B.  620;  35  L.  J.  176,  Q.  B. 

(<f)  Beverley  v.  Lincoln  Gas  Co.,  6  A.  &  E.  829. 

(/)  South  of  Ireland  Colliery  Co.  v.  Waddle,  L.  R.  3,  C.  P.  470,  judgment 
of  BoviLL,  C.  J.  See  Henderson  v.  Australian  Royal  Mail  Co.,  24  L.  J.  326, 
judgment  of  Erle,  J. 

{g)  See  Diggle  v.  London  and  Blackwall  Rail  Co.,  5  Exch.  442,  451  ;  19  L 
J.  308,  311,  Ex. 

{h)  .See  ante. 

(«■)  Fishmongers'  Co.  v.  Robertson,  5  M.  &  G.  192,  per  CURIAM.  Compare 
London    Water   Works    Co.    v.    Bailey,  4    Bing.   283,   287  ;   Leake,   Contracts, 

257- 

{/{•)  Australian  Royal  Mail  Cn.  v.  Mnrzctti.  11  Ex.  228  ;  2\  L.  J.  273,  Ex.  ; 
South  of  Ireland  Colliery  Co.  v.  Waddle,  L.  R.  3.  (^-  ^-  4f'3- 

(0  I  Lindley,  Partnership,  2nd  ed..  306.  Mayor  of  Ludlow  v.  Charlton,  6 
M.  &  W.  815  :  Lamprell  v.  Billcricay  Union.  3  Ex.  283  ;  18  L.  J.  282,  Ex. 
Leake,  Coniracis,  256,  257.     P>iit  conf.  lUoom.  Com..  2nd  cd.,  553. 


1 88  PARTIES     TO    ACTIONS. 

Exception  4. — Where  there  is  a  contract  implied  bylaw. 

Where  a  contract  is  implied  by  law.  a  corporation  may 
sue.  though  there  exists  no  agreement  under  seal  as  a 
basis  of  the  action.  The  ground  ot  this  exception  is,  it 
is  conceived,  that  the  basis  of  the  action  is  not  in  reaHty 
a  contract,  but  the  existence  of  circumstances  which  in 
the  view  of  the  law  give  the  plaintiff  a  right  to  sue  as  it 
there  were  a  contract  between  him  and  the  defendant,  {in) 
Hence  a  corporation  may  maintain  an  action  to  recover 
reasonable  satisfaction  for  the  use  and  occupation  of 
land,  held  and  occupied  by  the  permission  of  the  corpora- 
tion without  a  demise  under  seal ;  {n)  and  on  the  same 
principle  a  corporation  may,  it  is  conceived,  frequently 
support  an  action  for  money  had  and  received,  though 
there  may  have  been  no  contract  between  the  corporation 
and  the  defendant,  {o) 

Exception  5. — Where  a  corporation  is  authorized  by  statute 
to  contract  otherwise  than  under  seal. 

Companies  are  in  many  cases,  e.  g.,  under  the  Metrop- 
olis  Gas   Act,    i860,    (/)   the   Companies    Clauses   Act, 
1845,  {4)  the  Companies  Acts,  1856,  (r)  and   1867,  is) 
authorized  to  contract  otherwise  than  by  deed,  and    [169J 
can  of  course  sue   on  contracts  made  in  the  man- 
ner directed  by  statute. 

Rule  27. — A  corporation  or  incorporated  body 
can  not  sue  on  contracts  ultra  vires.  {£) 

(in)  See  ante. 

(w)  Dean  of  Rochester  v.  Pierce,  r  Camp.  466  ;  Marquis  of  Stafford  v.  Till, 
4  Bing.  75,  77.  In  this  case,  however,  there  may  fairly  be  considered  to  be  a 
real  though  tacit  contract  between  the  parties. 

(d)  Conf.  Hall  v.  Mayor  of  Swansea,  5  Q.  B.  526.  Jefferys  v.  Gurr,  2  B.  & 
Aid.  833. 

(/)  23  &  24  Vict.  c.  125,  s.  20. 

(,q)  8  &  9  Vict.  c.  16,  s.  95. 

(r)  19  &  20  Vict.  c.  47,  s.  41. 

(j)  30  &  31  Vict.  c.  131,  s.  37. 

(/)  Taylor  V.  Chichester  Rail.  Co.,  L.  R.  2,  Ex.  379,  judgment  of  Bi.ACKBUR!* 


INCORPORATED    BODIES.  189 

Rule  28. — When  an  incorporated  company  is  in 
the  course  of  winding-up,  actions  on  behalf  of  such 
company  are  brought  and  continued  in  its  corporate 
name  by  the  official  liquidator.  (7^)  ^ 

Companies  can  not  be  made  bankrupt,  {v)  but  are 
wound  up  under  the  provisions  of  the  Companies  Act, 
[862. 

A  registered  company  under  the  Companies  Acts, 
1857,  1858,  and  1862,  sues  in  the  same  way  as  far  as  form 
is  concerned  when  in  the  course  of  winding  up  as  before 
the  winding  up  commenced,  {x)  i.  e.,  actions  are  brought 
and  continued  in  the  corporate  name  of  the  company,  {y) 

Set-off. — In  an  action  for  calls,  brought  by  a  limited 
company  being  voluntarily  wound  up  under  the  Compa- 
nies Act,  1862,  against  a  contributor,  the  defendant  may 
set-off  a  debt  due  to  him  from  the  company,  {z)  But 
[170]  where  a  limited  company  is  being  wound  up  by  the 
court  or  under  the  supervision  of  the  court,  the  de- 
fendant in  an  action  for  calls  can  not  set-off  debts  due  to 
him  from  the  company,  {a) 

J.     The  reader  is  referred  for  the  explanation  to  this  rule  to  tlie  analogous  rule 
with  regard  to  actions  against  companies.     Chapter  XIV. 

[u)  Companies  Ac":,  1862,  ss.  94,  95.  2  Lindley,  Partnership,  2nd  ed.,  1274- 
1278,  and  Companies  Act,  1862,  s.  203.  The  companies  referred  to  in  this 
Chapter  are,  it  should  be  remembered,  incorporated  companies. 

iv)  See  Bankruptcy  Act,  1S69,  s.  5. 

(x)  2  Lindley,  Partnership,  2nd  ed.,  1274.     See  aitte. 

{)')  See  ante. 

(z)  Brighton  Arcade  Co.  v.  Bowling,  L.  R.  3,  C.  P.  175  ;  37  I-  J-  427. 
C.  P. 

(a)  Brighton  Arcade  Co.  v.  Dowling,  L.  R  3,  C.  P.  175  ;  37  L.  J.  427.  C.  P. 
Grissell's  Case,  L.  R.  i,  Cli.  App.  52S. 

I.  A  receiver  should  sue  in  the  Kent,   70    Ind.  429;    Dc    Wolf  v. 

name   of  the   party   in    whom   the  Spragiie's  M'f'g  Co.,  11    R.   I.  38; 

right  of  action  existed  when  he  was  Haxtum  v.    liishop,   3   Wend.    16; 

appointed,  when  there  is  nothing  to  Porter  v.  Williams,  9   N.    Y.    147; 

the  contrary  in  the  statute  or  in  the  Singerly  v.  Fox,  75  Pa.  St.  1 14. 
order  appointing   him.     G.irver  v. 


£90  PARTIES     TO    ACTIONS. 


CHAPTER   VIII. 

HUSBAND    AND    WIFE. 

Rule  29. — A  wife  can  not  during  coverture  5ue 
without  her  husband.' 

A  wife  is  in  the  eye  of  the  law  for  some  purposes  one 
person  with  her  husband,  {a)  She  is  therefore  incapable 
of  bringing-  an  action  at  law  to  obtain  redress  for  an  injury 
sustained  in  respect  of  her  person  or  property,  unless  the 
action  be  brought  with  her  husband's  concurrence,  and 
in  his  name  as  well  as  her  own.  {b) 

Right  of  zvife  to  use  Jmsband' s  name. — As  a  married 
woman  can  never  sue  alone,  the  courts,  to  a  limited 
extent,  protect  her  in  the  use  of  her  husband's  name  with- 
out his  authority.  Where  a  wife  sued  as  executrix  in  her 
own  name  and  that  of  her  husband  without  his  authority, 

(<;)  Coke,    Lilt.,    \\2a  ;  2    Steph.,    Com.,   6th    ed.,  2S1,    2S2.     The   Queen, 

whether  regnant  or  cor.sort,  is  considered  a  feme  sole.  Ibid.,  283. 

{h)  Ibid.,  289.  Eubanke  v.  Owen,  5  A.  &  E.  298  ;  Ayling  v.  Whicher,  6  A 
&  E.  259. 

I,  Bien  v.  Heath,  6  How.  239;  McArth.65.  But  as  to  those  arising 

Bradley    v.    Emerson,   7   Vt.    370;  after  coverture   the   husband   sues 

Ward   V.  Ward,  2   Dev.  Eq.  554;  alone.     Story  v.  Baird,  14  N.  J,  L. 

Stephens  v.  Porter,  il   Heisk,  342;  268;  Bratton  v.  Mitchell,  7  Watts, 

Belouquet  v.  Lanata,  13  La.  Ann,  115;    Little  v.  Keyes,  24  Vt.  121; 

3.     When  the  right  of  action  arose  Fightmaster    v.    Beasley,    i    J.    J. 

before  coverture,  the  husband  and  Marsh   606;  Carswell  v.  Schley,  50 

wife  must  be  joined  in  the  action.  Ga.  22;   Barrett  v,  Tewksbury,   18 

Story   V.   Baird,   14   N.  J.    L.    268 ;  Gal.  336. 

Bratton  v.  Mitchell,  7  Watts,  115;  Where  the  promise  was  to  the  wife 

Neagle  v.  Hensley,  5  J.  J.  Marsh,  while  sole,  she  must  join  in  an  action 

378;    Armstrong    v.   Simonton,    2  upon  it.     Morse  v.  Earl,  13  Wend. 

Murph.  352;  Gibson  v.  Gibson,  43  272  ;  Brown  v,  Fitz,  13  N.  H.  286; 

Wis.   24;    Bell   v.   Allen,    53   Ala.  Tuttle  v.  Fowler,  22  Conn.  63;  Bond 

125  ;  Kimbro  v.  First  Nat,  Bank,  i  v.  Baldwin,  Coxe,  216, 


HUSBAND    AND     WIFE.  191 

the  court  refused  to  stay  proceedings  absolutely,  but 
stayed  them  until  security  was  given  to  the  husband 
against  the  costs  of  the  action,  {c)  Where  a  wife  living 
apart  and  formally  separated  from  her  husband,  brought 
an  action  of  trespass  in  her  own  name  and  in  that  of 
her  husband,  the  court  refused  to  stay  proceedings  on 
the  mere  ground  of  the  action  being  brought  without  his 
consent,  {d')  But  even  when  the  wife  sues  as  execu- 
trix, {e)  the  husband  has  the  power  to  release  or  [172] 
settle  the  action.  (/) 

Exception  i. — Where  the  husband  is  civilly  dead. 

A  wife  can  sue  alone  when  her  husband  is  civilly  dead, 
either  permanently  or  for  a  time,  e.  g.,  by  imprisonment 
or  transportation,  {g) 

Her  right  to  sue  alone  ceases  with  the  cessation  of  her 
husband's  civil  death,  e.  g.,  by  the  termination  of  his 
punishment.  If  he  has  been  transported,  and  does  not 
return  after  the  end  of  his  punishment,  his  wife,  it  seems, 
can  sue  alone,  on  the  ground  of  his  having  abjured  the 
realm,  {h) 

A  man's  being  an  alien  enemy  is  not  a  ground  on  which 
his  wife  can  sue  in  her  own  name.  (/)  "  Whether  it  is  to 
be  assumed  that  the  contract  was  entered  into  before  or 
after  marriage,  the  husband  ought  to  be  joined,  and  it  is 
no  answer  to  say  that  he  is  an  alien  enemy,  and  therefore 
can  not  sue.  It  may  be  a  hard  case,  but  the  hardship  is 
not  so  great  as  it  at  first  seems,  because  the  rights  of  the 
alien  enemy  being  forfeited  to  the  Crown,  it  is  in  the 
power,  and  it  may  be  the  duty,  of  the  Crown  to  enforce 

(f)  Proctor  V.  15rotlierton,  23  I>.  J.  116,  Ex.  ;  9  Exch.  4S6 
(</)  Chamliers  v.  Donaldson,  9  East,  470. 

(e)  2  Williams,  Executors,  6th  ed.,  904. 

(/)  Ciiambers  v.  I)onal<l.-,on,  9  East,  470. 

Perhaps,  in  a  case  of  clear  hardship,  the  court  might  interfere  by  preventing 
ihe  release  from  being  pleaded  (Innell  v.  Newman,  4  B.  i*^  Ad.  419),  or  possibly 
by  allowing  a  replication  setting  forth  the  facts.     As  to  co-plaintiffs,  utile. 

(g)  Belknap's  Case,  Coke.  Litt.,  133^,  i2,2,b  ;  Jewson  v.  Read,  Loft.  142. 
See  anU. 

(k)  Carroll  v.  Blencowe,  4  Esp.  27. 

(0  De  Wahl  v.  Braune.  i  H.  &  N.  178  ;  25  L.  J.  343,  Ex. 


192  PARTIES     TO    ACTIONS. 

its  rig-hts  b}'  inquisition,  and  take  possession  of  the  hus- 
band's property  and  right,  and  then  use  those  rights 
jointly  with  and  tor  the  benefit  of  the  wife."  {k) 

Exception  2. — Where  the  husband  is  legally  presumed  to 
be  dead. 

A  wife  can  sue  alone  where  her  husband  is  pre- 

[173]   sumed  in  law  to  be  dead.     This  presumption  arises 

after  a  lapse  of  seven  years,  if  he  has  gone  abroad 

and  absented  himself,  and  no  account  can  be  given  of  him 

during  his  absence.  (/) 

Exception  3. — Where  a  wife  has  a  "judicial  separation  "  or 
"protection  order"  under  20  &  21  Vict.  cap.  85,  ss.  26  and  21. 

"  In  every  case  of  a  judicial  separation,  the  wife  shall, 
whilst  so  separated,  be  considered  as  a  feme  sole  for  the 
purposes  of  contract,  and  wrongs,  and  injuries,  and  suing 
and  being  sued  in  any  civil  proceeding  ;  and  her  husband 
shall  not  be  liable  in  respect  of  any  engagement  or  con- 
tract she  may  have  entered  into,  or  for  any  wrongful  act 
or  omission  by  her,  or  for  any  costs  she  may  incur  as 
plaintiff  or  defendant,  provided,  that  where  upon  any 
such  judicial  separation  alimony  has  been  decreed  or 
ordered  to  be  paid  to  the  wife,  and  the  same  shall  not  be 
duly  paid  by  the  husband,  he  shall  be  liable  for  neces- 
saries supplied  for  her  use  ;  provided  also  that  nothing 
shall  prevent  the  wife  from  joining,  at  any  time  during 
such  separation,  in  the  exercise  of  any  joint  power  given 
to  herself  and  her  husband."  {m) 

The  protection  order  places  the  wife  "  in  the  like  posi- 
tion in  all  respects  with  regard  to  property  and  contracts, 
and  suing  and  being  sued,  as  she  would  be  under  (20  & 
21  Vict.  cap.  85),  if  she  obtains  a  decree  of  judicial  sepa- 
ration." {n) 

ik)  Ibid.,  344,   Ex.,  judgment  of  Pollock,  C.  B.     The  wife  of  an  alien 
enemy  may,  however,  be  sued  alone,  see  Chapter  XVI. 
(/)  Hopewell  v.  De  Pinna,  2  Camp.  113. 
(w)  20  &  21  Vict.  c.  85,  s.  26. 
(■«)  Ibid.,  s.  21. 


HUSBAND    AND     WIFE.  193 

But  though  an  order  protects  the  property  acquired 
by  her  since  the  commencement  of  the  desertion,  it  does 
not  entitle  her  to  continue  an  action  commenced  before 
the  order  was  made  ;  {o)  and  it  may  be  doubtful  whether 
after  the  order,  she  can  sue  for  causes  of  action  which 
were  complete  before  the  order  was  made.  (/>) 


SUBORDINATE   RULE. 

A  husband  can  not  bring  an  action  against  his  wife,  or  a  wife 
against  her  husband. 

This  subordinate  rule  follows  immediately  from  the 
fact,  ihat  a  wife  can  neither  be  sued  {q)  nor  sue  without 
joining  her  husband. 

A  husband  may,  however,  enter  mto  a  contract  with  a 
third  person  as  trustee  for  his  wife,  and  such  trustee  may 
bring  an  action  against  him.  (r) 


Rule  30. — A  husband  and  wife  must  sue  jointly  in 
two  {s)  cases,  sc. 

1.  On  contracts  made  by  the  wife  before  marriage  : 

2.  On  contracts  in  which  the  wife  claims  as  exec- 
utrix, or  administratrix.^ 

{p)  Midland  Rail.  Co.  v.  Pye.  ro  C.  B.,  N,  S.,  179  ;  3^  L.  J.  314.  C.  P. 

(/)  See,  however,  Johnson  v.  Lander,  L.  R.  7  Eq.  228. 

{q)  See  Rule  5  and  Chapter  XVL 

(»)  2  Steph.,  Com.,  6lh  ed.,  282. 

(.()  A  husband  and  wife  must  also  sue  jointly,  it  is  said  in  a  third  case,  sc, 
on  covenants  running  with  the  land  of  which  they  are  joint  assignees  (Middle- 
mon;  V.  Goodale,  Cro.  Car.  503,  505.  See  Wootton  v.  StefTenoni,  12  M.  &  W. 
129;  Broom,  Parties,  2nd  ed. ,  s.  108). 

I.  So  at  common  law,  and  unless  Hobbs,  70  Me.  381  ;  Hill  v.  Hill,  38 

the  contrary  results   from   the  ex-  Md.  183;  Chestnut  v.  Chestnut,  72 

press  terms   of  the   statute   or  by  111.  350.     Not  so  in  equity.     Porter 

necessary    implication.      Smith    v.  v.  Dank   of  Rutland,   19  Vt.  417; 

Gorman,  41   Me.  408;  Crowther  v.  Kashaw  v.    Kashaw,  3   Cal.    321; 

Crowther,   55  Me.  359;    Hobbs  v.  Wood  v.  Wood,  2  Paige.  457. 
13 


194  PARTIES     TO    ACTIONS. 

This  and  the  next  rule,  (/)  can  only  be  understood  by 
bearing  in  mind  the  eflcct  of  marriage  on  the  personal 
property  of  the  wife. 

This  property  may  consist  either  of  personal  chattels 
in  possession,  or  of  choscs  in  action,  {u)  The  former, 
whether  belonging  to  her  at  the  time  of  the  marriage,  or 
accruing  to  her  during  coverture,  become,  in  general,  (w) 
the  absolute  property  of  the  husband,  {x)  The 
[175]  latter,  whether  belonging  to  the  wife  at  the  time  ot 
the  marriage,  or  accruing  to  her  during  coverture, 
do  not  belong  to  the  husband  absolutely,  but  become  his 
only  conditionally  upon  his  reducing  them  into  possess- 
ion, /.  c,  making  them  his  own,  during  coverture,  {y) 

B.,  for  example,  has  at  the  time  of  her  marriage  with 
A.,  possession  of  ;i^ioo,  and  £^0  is  owing  to  her  from  X. 
On  her  marriage,  the  ^100  becomes  the  absolute  property 
of  A.  The  ^50  does  not  become  his  absolute  property; 
and  if  he  were  to  die  without  reducing  it  into  possession, 
it  would  continue  the  property  of  B.  Suppose,  however, 
that  A.  pays  his  debt  of  ;^50,  either  to  B.  or  to  A. ;  or, 
suppose  that  the  amount  is  actually  recovered  irom  him 
in  an  action.  In  either  case  the  £"^0,  which  was  before 
a  chose  in  action,  and  as  such  belonging  to  B.,  has  been 
reduced  into  possession,  and  in  consequence  becomes  the 
absolute  property  of  A.,  so  that  on  his  death  it  passes  to  his 
representatives.  The  rights  of  a  wife  at  common  law,  as 
regards  the  choses  in  action,  have  been  described  by  the 
Court  of  Queen's  Bench  in  the  following  language  : 

"There  is  no  doubt  that  all  personal  property  of  a 
corporeal  nature,  such  as  goods  or  cash  belonging  to  the 
wife  before  marriage,  vests  in  the  husband  by  the  mar- 
riage, and  that  all  such  property  given  to  or  acquired  by 
the  wife  after  marriage  also   vests  in  the  husband.     But 

{t)  Rule  31. 

(u)  For  the  distinction,  see  rt«/'if.  / 

{w)  Coke.Litt.,  351  b  ;  2  Steph.,  Comm.,  6th  ed.,  286. 

(x)  This  is  not  so  as  to  property  to  which  she  is  entitled  in  autre  dioit,  e.i^. 
as  executrix,     i  Steph.,  Comm.,  6ih  ed.,  286. 

(/)  2  Steph.,  Com-n.,  6th  ed.,  286,  287  ;  Wilkinson  v.  Gibson,  L.  R.  4  Eq. 
162. 


HUSBAND    A  AW     WIFE.  195 

choses  in  action  belonging  to  the  wife  before  marriage 
do  not  vest  in  the  husband  unless  he  has  done  some  act  to 
reduce  them  into  possession  during  the  coverture  ;  even 
during  the  coverture  the  husband  may  permit  the  wife  to 
make  a  contract,  in  an  action  on  which  he  may  join  with 
her  during  her  life,  though  he  may  disaffirm  her  interest, 
and  sue  on  the  contract  as  made  with  himself  alone.  If  he 
doespermit  the  wife  to  make  such  a  contract,  and  does  not 
reduce  it  into  possession  during  the  coverture,  it  survives 
to  the  wife.  The  earlier  cases  illustrating  this  rule 
are  cases  of  written  contracts,  such  as  bonds  or  [176] 
promissory  notes  given  to  his  wife,  or  to  the  hus- 
band and  wife  dunng  coverture.  As  to  these,  the  law 
is  stated  in  i  Williams  on  Executors,  6th  ed.,  p.  798.  to  be 
fully  settled,  *  that  if  there  be  a  bill  or  note  made  to  a 
married  woman  during  coverture,  the  husband  may  sue 
upon  it,  or  permit  his  wife  to  take  an  interest  in  it,  in 
which  case  it  appears  to  stand  on  the  same  footing  as 
if  it  had  been  made  to  her  before  coverture.'  Except 
from  the  difficulty  of  showing  that  the  contract  was,  in  fact, 
made  with  the  wife,  we  see  no  reason  why  the  rule  of  law 
should  be  different  in  this  respect  in  the  cases  of  contracts 
in  writing  and  any  other."  {z) 

Choses  in  Action — Reduction  into  Possession. — In  order, 
therefore,  to  determine  whether  a  wife  must,  {a)  or  may, 
(^)  join  in  an  action  ;  or,  what  is  in  reality  the  same  inquiry, 
whether  her  or  her  husband's  representatives  are  the 
proper  parties  to  bring  an  action,  it  is  necessary  to  con- 
sider the  two  following  questions  : 

\st  Question. — Was  the  claim  in  respect  of  which  an 
action  is  to  be  brought  ever  a  chose  in  action  of  the 
wife's  ? 

The  distinction  between  property  in  possession,  e.  g.^ 
the  cash,  articles  of  furniture,  cSlc,  which  a  person  actually 
possesses,  and  the  choses  in  action,  e.  g.y  debts,  which  lie 
can  only  recover  by  action,  is  in  itself  sufficiently  plain. 

(«)  Flept  V.  Pei-ins,  L.  R.  3,  Q.  B.  541,  542,  per  Curiam. 
(a)  Rule  30. 
(*)  Rule  31. 


196  PA  RTF  lis     TO    ACTIONS. 

But  it  is  not  always  easy  to  decide  under  which  head 
given  property  falls.  Thus  it  has  been  doubted  whether 
bills,  notes,  iSic,  are  property  in  possession  or  choses  in 
action  ;  and,  thou<;h  it  is  now  decided  that  they  are 
choses  in  action,  the  fact  that  they  were  at  one  time  con- 
sidered personal  chattels  in  possession,  still,  to  some  extent, 
affects  the  rules  as  to  the  parties  to  sue  upon  them.     The 

two  following  cases  exemplify  the  difficulties  which 
[177]   ma}'    still   arise  in  determining  the  character  of  a 

given  claim  : 
By  a  settlement  made  on  the  marriage  of  A.  with  B., 
his  wife,  certain  leaseholds  were  assigned  to  X.,  in  trust, 
to  allow  B.  to  receive  the  rents  during  her  life.  B.,  during 
coverture,  received  the  rents  from  X.,  and  lent  a  portion 
of  the  money  so  received  to  him.  It  was  held,  that  after 
B.'s  death,  A.  might  in  his  own  right  sue  X.  for  the 
money,  in  an  action  for  money  received,  {c)  It  was  con- 
tended on  behalf  of  X.,  that  the  money  lent  b}^  B.  was  a 
chose  in  action,  which  during  her  life  must  have  been 
sued  for  by  A.  and  B.,  and  on  B.'s  death  must  be  sued  for 
by  her  administrator.  The  decision  of  the  Court  went 
on  the  ground  that  the  money  when  received  b}^  B.  be- 
came A.'s  property  in  possession,  which  in  point  of  law 
belonged  to  him,  and  that  he,  therefore,  sued  B,,  not  for  a 
chose  in  action  of  his  wife,  but  to  recover  his  own  money 
owing  to  himself. 

X.  received  money  from  M.  to  be  appropriated  to  the 
use  of  B.,  the  wife  of  A.,  and  wrote  to  B.,  telling  her  that  he 
held  the  money  at  her  disposal.  A.  survived  B.,  and  died, 
never  having  at  any  time  interfered  as  to  the  money.  It 
was  held  by  the  Court  of  Queen's  Bench,  {d)  and  by  the 
majority  of  the  Exchequer  Chamber,  {e)  that  the  repre- 
entative.  not  of  A.,  but  of  B.,  was  the  proper  party  to 
sue  for  tlie  money,  as  the  facts  showed  a  chose  in  action 
conferred  on  the  wife  with  which  the  husband  had  not 
interfered  during  coverture. 

(c)  Bird  /.  Peagrum,  13  C.  B.  639  ;  22  L.   J.  166,  C  P. 

(d)  Fleet  V.  Perrins,  L.  R.  3,Q.  B.  536  ;  37  L.J.  233,  Q.  B. 
{e]  L  R.  4.  Q,  B.  500  ;  37  L.  J.  536,  Q.  B.  (Ex.  Ch.) 


HUSBAND    AND     WIFE.  197 

"  The  tacts  show  that  there  was  a  chose  in  action  con- 
ferred on  the  wife  with  which  the  husband  did  not  during- 
coverture  interfere.  The  money  did  not,  according  to  the 
rule  in  WiUiams  v.  Everett,  (/)  become  the  money 
of  the  person  on  whose  behalf  it  was  remitted  until  [178] 
the  depositee  had  by  some  act  attorned  to  that  per- 
son, up  to  which  time  it  remained  the  money  of  the 
remitter,  {g)  The  money  here  was  remitted  for  the  use 
of  the  wife,  and  of  her  alone ;  and  the  letters  of  the  de- 
fendant attorning  to  the  remittee  were  addressed  to  the 
wife  a(one,  and  were  promises  to  her  to  hold  the  money 
at  her  disposal ;  and  there  never  was  anything  done  to 
vest  either  in  the  husband  or  the  wife  any  property  in  any 
coin  as  a  personal  chattel,  so  that  it  remained  a  mere  chose 
m  action  in  the  wife,  with  which  the  husband  did  not  in- 
terfere." {Ji) 

2nd  Question.  Has  the  chose  in  action  been  reduced 
into  possession  ? 

Suppose  it  to  be  determined  that  a  wife  once  pos- 
sessed a  chose  in  action.  The  further  question  still 
remains  whether  her  husband  has  reduced  it  into  posses- 
sion. (0 

The  general  principle  is  that  his  "acts,  in  order  to 
effect  that  purpose  [viz.,  of  reducing  his  wife's  choses  in 
action  into  possession],  must  be  such  as  to  change  the 
property  in  them  ;  or,  in  other  words,  must  be  something 
to  divest  the  wife's  right,  and  to  make  that  of  the  husband 
absolute;  such  as  a  judgment  recovered  in  an  action 
commenced  by  him  alone,  or  an  award  of  execution 
recovered  by  him  and  his  wife,  or  receipt  of  the 
money."  (7) 

The  most  usual  modes  in  which  a  reduction  into  pos- 
session, e.g.,  of  a  promissory  note,  can  be  effected  by  the 
husband,  are  receiving  the  money  due,  recovering  the 
amount  in  an  action,  or,  apparently,  bringing  an  action 

(/)  14  Kast.  582. 

( g)  See  ante. 

(h)  Fleet  V.  Perrins,  L.  R.  3,  Q.  B.  542.  per  Hlackhurn,  J. 

(«')  Scarpellini  v.  Atcheson,  7  Q.  H.  875,  jurigment  of  Denman,  C.  J. 

ij)   I  Williams.  Executors,  6lh  ed.,  802,  803. 


[98  PARTIES     TO     ACTIONS. 

(where  this  can  be  done)  in  his  own  name  alone,  {k) 
[179]    The  fact  of  a  husband  in  some  respects  treating  the 
property  of  his  wife  as  his  own,  or  expressing  an 
intention  to  reduce  it  into  possession,  is  not  of  itself  suf- 
ficient to  defeat  her  rights.  (/) 

If  the  answer  to  these  questions  be,  that  the  wife  has  a 
chose  in  action,  c.  g.,  a  debt  due  to  her,  and  that  the  chose 
in  action  has  never  been  reduced  into  possession  by  her 
husband,  she  always  may,  and  in  some  cases  must,  join 
with  her  husband  in  an  action  to  recover  it,  and  this 
principle  will  be  found  to  be  the  explanation  of  most  of 
the  rules  as  to  the  joinder  of  husband  and  wife  as  plain- 
tiffs. 

Case  I. — On  all  contracts  of  whatever  description 
(except,  perhaps,  negotiable  instruments,  e.  g.,  bills  of 
exchange  or  promissory  notes)  {m)  made  with  a  womar 
before  marriage,  actions  must  be  brought  during  cover 
ture  in  the  names  of  the  husband  and  of  the  wife,  {ji) 

This  rule  holds  good  whatever  be  the  nature  of  the 
contract  sued  upon,  and  applies  as  well  to  actions  on  so- 
called  implied  contracts,  e.  g.,  for  money  had  and  received, 
as  to  other  actions  ex  contractu. 

Case  2. — On  all  contracts  in  which  the  wife  claims,  not 
in  her  own  right,  but  in  a  representative  character,  e.  g., 
as  executrix,  an  action  must  be  brought  in  the  names  of 
the  husband  and  of  the  wife.  {6)  "  If,  however,  the  hus- 
band alter  the  nature  of  the  debt  owing  to  his  wife  in 
the  character  of  executrix  or  administratrix,  he  alone 
may    bring   the    action   for  recovering    it.     Thus    if  he 

(k)  Hart  V.  Stephens,  6  Q.  R.  937  ;  Scarpellini  v.  Atcheson,  7  Q.  B.  864  ; 
Gaters  v.  Madeley,  6  M.  &  W.  423  ;  Lush,  Practice,  3rd  ed.,  46.  It  may,  how- 
ever, be  a  little  doubtful  whether  the  bringing  an  action  in  the  husband's  own 
name  is  in  all  cases  a  sufficient  reduction  into  possession.  Compare  Scarpel- 
lini V.  Atcheson.  7  Q.  B.,  864  ;  14  L.  J.  333,  Q.  B. ;  Gaters  v.  Madeley,  6  M.  a 
W.  423. 

(/)  See  Williams,  Executors,  6th  ed.,  801-812. 

(m)  McNeilage  v.  Holloway,  i  B.  &  Aid.  218  ;  i  Williams,  Executors,  6th 
ed.,  794. 

(«)  Milner  v  Miines,  3  T.  R.  627,  631  ;  Benedix  v.  Wakeman,  12  M.  &  W 
97;  Sullen,  Pleadings,  3-J  ed.,  171. 

(0)  Bullen,  Pleadings,  3rd  ed.,  166  ;  William.s,  Executors   6th  ed.,  904. 


HUSBAND    AND     WIFE.  199 

should  indulge  the  debtor  with  further  time,  in  [:8o] 
consideration  of  an  express  purpose  to  pay  the 
husband,  &c.,  he  alone  may  compel  payment  of  it  by 
action,  ...  so  that  joining  the  wife  in  the  action 
would  be  error.  He  also  may  sue  alone  "  [though  he 
need  not]  (/)  "if  the  note  or  security  be  given' to  them 
jointly,  as  to  him,  and  to  his  wife  as  executrix."  {q) 

Effect  of  death.— On  the  death  of  the  husband,  the  right 
of  action  on  all  contracts  (r)  made  with  the  wife  before 
marriage  survives  to  her,  and  she  may  either  commence, 
or  (supposing  an  action  has  already  been  brought)  con- 
tinue, an  action  upon  them.  On  the  death  of  the  wife, 
the  right  of  action  passes  to  her  administrator.  Her 
husband,  who  always  has  a  right  to  be  her  administrator, 
must  sue  in  that  character.  Hence,  if  she  dies  after  the 
commencement  of  an  action,  the  action,  it  is  said,  abates, 
i.  e.,  the  proceedings  are  put  an  end  to.  {s) 

The  death  of  the  husband  produces  no  effect  on  the 
wife's  right  to  sue  on  contracts  made  with  her  as  exec- 
utrix. She  may,  that  is  to  say,  commence,  or  (if  an 
action  has  been  already  begun)  continue,  an  action  upon 
them  in  her  own  name.  On  the  death  of  the  wife,  whether 
before  or  after  action  brought,  the  right  of  action  passes, 
not  to  her  husband,  but  to  the  representative  of  her 
testator.  B.,  the  wife  of  A.,  has  claims  on  a  contract 
made  with  M.,  of  whom  she  is  executrix.  On  the  death  of 
B.,  the  right  of  action  passes,  not  to  A.,  but  to  the  repre- 
sentative of  M.  It  seems,  therefore,  to  follow,  that  if  an 
action  be  commenced  by  A.  and  B.,  and  B.  dies,  the  action 
will  abate. 

Effect  of  Divorce. — Divorce  annihilates  the  mar- 
riage from  the  moment  at  which  it  is  declared  dis-   [181] 
solved.  (?^)     The  woman,  in  consequence,  retains  her 

{p)  Ankerstein  v.  Clarke,  4  T.  R.  616. 

(q^  2  Williams,  Executors.  6th  ed.,  904,  905. 

(r)  These  incluflc  negotiable  instruments  (<».  ,^..  bills  of  exchange),  which, 
perhaps,  do  not  come  within  Case  T,  as  the  husband  apparently  may  sue  upoc 
them  alone. 

(s)  Lush,  Practice,  3rd  ed.,  46. 

(«)  Wilkinson  V,  Gibson,  L.  R.  4.  Eq-  162,  167. 


200  PAR71KS     TO    ACTIONS. 

property  in  all  choses  in  action  which  her  husband  has 
not  reduced  into  possession  {x)  during  coverture,  and 
must,  therefore,  after  divorce,  sue  alone  on  all  contracts 
made  with  her  before  marriage,  the  claims  on  which 
have  not  been  reduced  into  possession  before  the  mar- 
riage was  dissolved,  {y)  On  the  death  of  the  woman, 
the  right  to  sue  on  such  contracts  passes  to  her  represent- 
atives, (c) 

Set-off. — In  actions  by  husband  and  wife,  debts  due 
from  the  wife,  i.  c,  debts  contracted  before  marriage,  {a) 
may  be  set-off  against  debts  claimed  by  the  husband  and 
wife. 


Rule  31. — A    husband   may  sue  either   alone  01 
jointly  with  his  wife  in  three  cases,  sc.  : 

1.  On   negotiable    instruments   (e.  g.,    bills  of  ex- 
change) given  to  his  wife  before  marriage. 

2.  On    contracts    made    after    marriage    with   his 
wife  alone. 

3.  On  contracts  made  after  marriage  with  himself 
and  his  wife. 

Case  I. — It  was  at  one  time  considered  {b)  that  nego- 
tiable  instruments,   (e.  g.,   bills  of  exchange)  were 
[182]    personal  chattels  in  possession  ;  and  though  it  now 
may  be  held  as  settled  that  they  are  to  be  considered 
choses  in  action,  yet  bills  of  exchange,  notes,  &c.,  still  seem 
to  be  held  {d)  so  far  property  in  possession  that  a  hus- 

{x)  See  ante. 

( y)  Wilkinson  v.  Gibson.  L.  R.  4,  Ex.  162,  167. 

(2)  Compare  Johnson  v.  Lander,  L.  R.  7,  Eq.  228. 

{a)  Burrough  v.  Moss,  10  B.  &  C.  558  ;  Field  v.  Allen,  q  M.  &  W.  694  ; 
Lush,  Practice,  3rd  ed.,  46.     She  can  not  contract  debts  diirinj^  coverture. 

{b)  McN'eilage  v.  Holloway,  I  B.  &  Aid.  218  ;  Caters  v.  Madeley,  6  M.  cS: 
W.  423  ;  Richards  v.  Richards,  2  B.  &  Ad.  447  ;  i  Williams,  Executors,  6th 
ed.,  794,  797. 

(</)  Bullen,  Pleadings,  3rd  ed.,  171.    But  see  Bright,  Husband  and  Wife,  C4. 


HUSBAND    AND     WIFE.  201 

band  may  sue  upon  them  alone,  though  given  to  his  wife 
before  marriage. 

Such  instruments  do  not  become  the  property  of  the 
husband  until  reduced  into  possession ;  and,  therefore, 
pass  on  the  death  of  the  wife  to  her  administrator,  and 
stand  (except  as  regards  the  right  of  the  husband  to  sue 
upon  them  alone)  in  the  same  position  as  other  contracts 
made  with  a  wife  before  marriage,  {e) 

Case  2. — A  married  woman,  though  incapable  ot  mak- 
ing a  contract,  is  capable  of  having  a  chose  in  action  con- 
ferred on  her,  which  will  survive  to  her  on  the  death  of 
her  husband,  unless  he  has  interfered  by  doing  some  act 
to  reduce  it  into  possession.  (/)  A  wife,  that  is  to  say, 
can  not  contract,  but  she  may  be  contracted  with,  in  so 
far  that  she  mav  receive  rights  under  a  contract.  Hence, 
where  a  promise  is  made  to  a  married  woman  on  a  con- 
dderation  proceeding  from  her  solely,  as  a  contract  with 
her  to  pay  for  her  services  rendered,  wherever,  as  it  is 
said,  the  wife  is  the  "  meritorious  cause  "  of  the  action, 
there  is  a  contract  with  her  on  which  either  the  husband 
may  sue  alone  in  his  own  name,  or  jointly  in  his  own  name 
and  that  of  his  wife,  {g)  On  a  bond  given  to  the  wife 
during  coverture,  the  husband  and  wife  may  have  a  joint 
action  during  their  lives;  or  the  husband  may  sue  during 
coverture  in  his  own  name,  {h)  On  a  note  made  to 
the  wife  during  coverture,  the  husband  may  sue  [183] 
alone,  or  husband  and  wife  may  sue  jointly,  {i) 

The  contracts  made  with  a  wife  during  coverture,  of 
which  examples  are  to  be  found  in  decided  cases,  are 
mostly  contracts  in  writing,  such  as  bonds,  notes,  &c. ; 
but  there  is  no  reason  why  a  contract  should  not  be  made 


,'(■)   I  Williams,  Kxecutors,  6th  ed.,  798. 
/)  Ibid..  794  ;  Dalton  v.  Midland   Rail.  Co.,  13  C.  H.  474.  473  ;  22   L.  J 

177, 178,  C.  V. 

?•)  Hidgood   V.  Way,  2  W.  151.  1236;  Dalton   v.   Midland    Kail.  Co.,  13  C. 
B.  474;  22  L.J.  177.  C.  P. 

[/r    Day  v.  I'adrone,  2   M.   &   S.   396,  n.  (I>)  ;  AnkTslcm  v.  Clarke,  4  T.   R. 

(i)  rhilliskirk  v.  Pluckwcll,  2  M.  &  S.  393  ;   Howard  v.  Oake-..3  Exch.  136, 
Burrough  v.  Moss,  10  B.  &  C.  558  ;   iUiIlcn,  Pleadings.  3rd  sd..  171,  173- 


202  PARTIES     TO     ACTIONS 

with  a  wife  by  word  of  mouth.  {»,  It  is  more  difficult  1o 
prove  that  such  a  contract  wa^-  made  with  the  wife,  and, 
it  must  be  remembered,  that  in  ord^.r  to  make  out  a  valid 
simple  contract  (other  than  a  bill  or  note),  it  is  necessary 
to  show  a  consideration  proceeding  from  the  wife.  Thus 
it  has  been  held,  that  a  wife  could  not  join  in  an  action 
for  the  worth  of  her  labor,  masmuch  as  the  nusband  was 
entitled  to  the  proceeds  of  her  labor,  and  the  promise  in 
law,  therefore,  there  being  no  express  promise  to  the  wife, 
must  be  made  to  the  husband.  (/) 

Case  3. — Where  a  contract  is  made  with  a  husband 
and  wife,  e.  g.,  a  covenant,  bond  or  promissory  note,  the 
husband  may  sue  on  it  alone,  {m)  or  may  join  his  wife,  {n) 

The  principle  in  this  case,  as  in  all  the  other  cases  in 
which  a  husband  can  sue  either  alone  or  jointly  with  his 
wife,  is,  that  he  can  treat  a  promise  made  to  her  during 
coverture,  whether  alone  or  jointly  with  himself,  either  as 
a  promise  made  in  reality  to  himself  or  as  a  promise  made 
to  her  on  which  she  has  a  right  to  sue,  though  she  must, 
from  her  position,  join  him  as  a  plaintiff  in  the  action. 

A  judgment  obtained  by  a  husband  and  wife  during 
coverture,  stands  on  the  same  footing  as  a  contract 
[184]    made  with  the  husband  and  wife  jointly.     The  hus- 
band may  sue  upon  it  alone,  or  he  may  bring  an 
action  in  his  own  name,  and  in  that  of  his  wife.  {0) 

Effect  of  Death. — If  a  contract  be  made  after  marriage', 
either  with  the  wife  alone  or  with  the  husband  and  wife 
the  effect  produced  by  the  death  of  either  party  is  as  fol 
lows : 

{k)  Fleet  V.  Perrins,  L.  R.  3,  Q.  B.  536;  37  L.J.  233,  536,  Q.  B.  ;  L.  R.  4 
Q.  B.  500  ;  37  I,.  J.  536,  Q.  B.  (Ex.  Ch.,.  See  esp.  judgment  of  Blackburn 
J.,  L.  R.,  3  Q.  B.541,  542  ;  and  of  Cleasby,  B.,  L.  R.,  4  Q.  B.  507,  508. 

(/)  Brashford  v.   Buckingham,  i  Cro.  Jac.  77. 

(m)  Ankerstein  v.  Clarke,  4  T.  R.  616. 

(w)  Philliskirk  v.  Pluckwell,  2  M.  &  S.  393. 

{o)  I  Selwyn,  N.  P.,  r3th  ed.,  249  ;  i  Williams,  Executors,  6th  ed.,  808.  If, 
when  an  action  is  brought  by  the  husband  arid  wife  the  husband  dies  after 
judgment,  and  before  the  money  due  on  it  is  recovered,  such  money  is  the  prop- 
erty of  the  wife.  If,  where  the  husband  may  join  his  wife,  he  prefers  to  sue 
alone,  this  is,  it  would  seem,  an  election  to  treat  the  contract  as  made  with 
*iim,  and  the  money  due,  e.g.,  on  the  bond  or  note  is,  on  his  death,  the  prop- 
erty of  his  representatives. 


HUSBAND    AND     WIFE.  203 

On  the  death  of  the  husband  before  action  brought,  the 
right  of  action  survives  to  the  widow,  and  not  to  the 
husband's  representatives.  On  the  death  of  the  wife  before 
action  brought,  the  right  of  action,  on  a  contract  made 
with  her  alone,  passes  to  her  administrator,  and  her  hus- 
band must  sue  in  that  capacity.  The  right  of  action  on  a 
contract  made  with  the  husband  and  wife  survives  to  the 
husband. 

On  the  death  of  the  husband  after  action  brought,  the 
right  of  action  survives  to  the  wife.  No  effect  is  pro- 
duced on  the  action,  and  the  recovery  is  for  her  benefit. 
On  the  death  of  the  wife  after  action  brought,  the  right 
of  action  on  a  contract  with  the  wife  alone,  passes  to  her 
administrator,  and,  it  would  seem,  the  particular  action 
abates  ;  the  right  of  action  on  a  contract  made  with  the 
husband  and  wife  survives  to  the  husband,  {p) 

Effect  of  Divorce.  {q)—lt  would  appear  that  the  effect 
of    divorce   is  the  same   upon    all    the    choses    in 
action  of  the  wife  ;  and  that  it  therefore  makes  no    [185] 
difference  as  to  the  right  of  a  divorced  woman  to 
sue  alone  on  contracts  made  with  her,  whether  they  were 
made  before  or  after  marriage,  {r) 

Set-off. — Where  a  husband  sues  in  his  own  name  with- 
out joining  his  wife,  debts  due  from  the  husband  can  be 
set-off  against  him.  But  debts  due  from  the  husband  on 
account  of  his  wife,  sc,  debts  contracted  by  his  wife 
before  marriage,  can  not  be  set-oif. 

Where  a  husband  sues  in  his  own  name  and  \n  that  ot 
his  wife,  debts  due  from  him  can  not  be  set-off,  but  debts 
due  from  him  on  account  of  his  wife,  sc,  debts  contracted 
by  her  before  marriage,  can  be  set-off. 

ip)  These  statements  do  not  apply  when  thi;  chose  in  action  has  been  re- 
duced into  possession,  and,  therefore,  do  not  apply  where  an  action  has  been 
brought  in  the  husband's  name,  since  bringing  such  an  action  is  (apparently) 
equivalent  to  a  reduction  into  ])ossession.  They  do  not  ajiply  to  negotialiie 
instruments  given  to  the  wile  before  marriage,  which,  except  as  regards  the 
fact  that  the  husband  may  sue  upon  them  alone,  stand  in  the  same  position  as 
other  contracts  made  with  the  wife  before  marriage. 

iq)  A  douljt  may  (it  is  conceived)  exist  as  to  liie  effect  of  divorce  on  a  con- 
tract made  with  the  liu-li.ind  and  wife. 

(r;  See  ante. 


204  PARTfRS     TO    ACTIONS. 

To  put  the  same  thing  in  a  difiercnt  form,  when  a 
husband  sues  in  his  own  name,  the  action  is  treated  as 
one  brought  by  him,  and  against  his  claims  in  such  an 
action  debts  can  not  be  set-off  which  are  due,  not  from 
him,  but  from  his  wife.  When,  on  the  other  hand,  the 
action  is  brought  by  the  husband  and  wife,  it  is  consid- 
ered as  one  brought  by  her,  though  the  husband's  name 
must  be  joined,  as  it  is  said,  for  the  sake  of  conformity, 
and  therefore  debts  due  from  her  can,  and  debts  due  from 
him  can  not,  be  set-off.  {s) 


Rule  32. — The  following  are  the  results  of  errors 
as  to  joinder  of  parties  in  actions  by  husband  or 
wife : 

1.  If  a  husband  sues  alone  where  the  wife  must 
(/)  be  joined,  the  error  is  fatal. 

2.  If  a  wife  sues  alone  where  she  either  must  {t) 
or  may  {71)  be  joined,  the    only  result  is  to  expose 

her  to  a  plea  in  abatement. 
[186]    3.      If  a  husband  sues  with  his  wife  where  she 
neither   must   nor  may  be  joined,  the  error  is 
fatal. 

I.  If  a  Jiusbajid  sues  alone  where  the  wife  must  be  joined y 
the  error  is  fatal. — A.,  the  husband  of  B.,  sues  alone  in  a 
case  in  which  B.  ought  to  be  joined,  e.g.,  on  a  contract 
made  with  B.  before  marriage,  iy)  The  error  is  fatal ; 
tor  the  person  who  really  has  a  cause  of  action  is  not  the 
husband,  but  the  wife,  though  the  action  ought,  as  a  mat- 
ter of  form,  to  be  brought  in  her  and  her  husband's 
names.  The  error  can,  if  it  appears  upon  the  record,  be 
taken  advantage  of  by  demurrer,  motion  in  arrest  of 
iudgment,  or  error.     If  it  transpires  at  the  trial,  it  will  be 

(j)  See  Lush,  Practice,  3rd  ed.,  46,  47. 

(/)  Rule  30. 

(«)  Rules  30  and  31. 

{v)  Rule  30,  Case  i. 


HUSBAND    AND     WIFE.  205 

a  ground  for  a  non-suit  or  an  adverse  verdict,  {w)     It  is 
questionable  whether  this  error  can  be  amended. 

2.  If  a  wife  sties  alone  where  she  either  must  or  may 
be  joiyted,  the  only  result  is  to  expose  her  to  a  plea  in  abate- 
ment.— Suppose  that  B.  sues  alone  on  a  contract  made 
with  her  before  her  marriage  with  A.,  or  on  a  chose  in 
action,  e.  g.,  a  bond,  given  her  during  coverture.  She 
has  in  either  case  a  right  of  action,  but  she  ought  as  a 
matter  of  form,  or,  as  it  is  said,  "  for  the  sake  of  con- 
formity," to  join  her  husband.  The  omission  to  do  so  is. 
however,  not  a  fatal  error.  The  defendant  can  take 
advantage  of  it  by  a  plea  in  abatement,  but  if  he  does 
not  plead  in  abatement,  and  the  fact  that  the  husband 
ought  to  have  been  joined  appears  at  the  trial,  the  defend- 
ant can  take  no  advantage  of  the  error  whatever,  (.r) 

"i,.  If  a  husbajid  sties  with  his  wife  where  she  neither 
must  nciT  may  be  joined,  the  error  is  fatal. — If  A.  sues  in  his 
own  name  and  in  that  of  B.,  e.  g.,  on  a  contract  made  with 
him  before  marriage,  the  error  is  fatal. 

It  would  seem  that  the  error  can  not  be  amended, 
for  it  is  not  so  much  a  case  of  misjoinder  as  of  an    [187] 
action  brought  by  a  wrong  plaintiff,  (j/) 


Rule  33. — Where  a  husband  is  bankrupt  and  the 
trustee  in  bankruptcy  sues  in  the  riijht  of  the  wife, 
he  must  join  the  wife  with  him  in  suing. 

Where  the  right  of  action  of  a  bankrupt's  wife  is  of 
such  a  character  that  if  vested  in  the  bankrupt  himself, 
it  would  have  passed  to  his  trustee  in  bankruptcy,  {z)  the 

{7v)  Hullen,  I'leaflings,  3r(l  ed.,  171. 

jr)  Ibid.  ;   Dalton  v.  Midland  Rail.  Co..  13  C.  R.  474  i  22  L.  J.  177,  C.  V. 

\y)  See  Holinybroke  v.  Kerr.  L.  R.  r,  Ex.  222.  223,  and  Th.-ipler  XXXIV. 
In  all  cases,  except  those  enumerated,  the  liusljand  must  sue  alone  on  contracts 
made  with  the  wife.  Such  contracts  are.  in  fact,  not  contracts  with  her.  but 
contracts  made  with  her  husband  ihrouijh  her  as  his  agent.  If  a  wife  sues 
alone  in  a  ca^e  where  she  can  not  be  joined  as  plaintiff,  she  is  suing  without 
any  cause  of  action,  and  must  fail. 

(«)  .See  Chapter  IX.  f-oft. 


206  PARTIES     TO    ACTJONS. 

interest  of  the  bankrupt  in  such  right  of  action  passes  to 
the  trustee. 

The  trustee,  that  is  to  say,  has  the  same  rights  with 
regard  to  contracts  with  the  bankrupt's  wife,  in  her  own 
right,  as  the  husband  before  bankruptcy  himself  possessed, 
e.  g.,  if  a  contract  is  made  with  B.  before  her  marriage 
with  A.,  A.'s  trustee  has  the  same  interest  in  the  contract 
as  A.  himself  possessed  before  the  bankruptcy.  An  ac- 
tion, therefore,  can  not  be  brought  either  in  the  name  of 
B.  alone,  {a)  or  in  the  name  of  A.  and  B.,  {b)  but  that  it 
must  be  brought  in  the  names  of  B.  and  of  the  trustee,  and 
the  recovery  will  be  for  the  advantage  of  the  trustee. 

The  assignment,  however,  in  bankruptcy  does  not 
reduce  the  wife's  choses  in  action  into  possession,  and 
therefore,  if  the  husband  die  after  bankruptcy,  the  wife's 
rights  of  survivorship  are  not  destroyed  by  the  bank- 
ruptcy, {c)  e.  g.,  a  contract  is  made  with  B.,  before 
[i88]  her  marriage  with  A.,  A.  becomes  bankrupt  and 
then  dies,  no  steps  having  been  taken  to  reduce  B.'s 
chose  in  action  into  possession.  B.'s  rights  under  the  con- 
tract are  unaffected  b}^  the  bankruptcy,  and  she  is  the 
person  to  sue  for  its  breach. 

(a)  Sherrington  v.  Yates,  I2  M.  &  W.  855  ;  13  L.  J.  249,  Ex. 

\b)  Richbell  v.  Alexander,  30  L.  J.  268.  C.  P.  ;  10  C.  B.,  N.  3    324. 

{c)  See  Roper,  Husband  and  Wife,  2nd  ed.,  232. 


BANKRUPT    AND     TRUSTEE.  zoj 


CHAPTER    IX. 


BANKRUPT    AND    TRUSTEE. 

Rule  34. — The  trustee  ((i;)ofthepropertyof  a  bank- 
rupt must  sue  for  the  breach  of  any  contract  made 
with  the  bankrupt  before  bankruptcy  in  which  the 
bankrupt  has  both  a  legal  and  a  beneficial  interest 

Trustee  must  sue. — "  The  object  of  all  the  statutes  with 
regard  to  bankrupts  [has  been]  that  everything  that  can 
be  turned  to  profit  shall  pass  "  {b)  immediately  on  the 
bankruptcy,  and  be  assigned  to  some  person,  called  under 
the  f(jrmer  Acts  an  assignee,  and  under  the  present  x^ct  a 
trustee,  who  shall  hold  the  property  thus  passing  to  him 
for  the  benefit  of  the  creditors. 

This  object  is  thus  attained  under  the  Bankruptcy 
Act,  1869.  On  the  adjvidication  of  bankruptcy,  all  the 
property  of  the  bankrupt  vests  in  the  registrar  of  the 
court,  and,  on  the  appointment  of  a  trustee,  forthwith 
passes  to  and  vests  in  the  trustee,  {c)  who  is  empow- 
ered "  to  bring  or  defend  any  action,  suit,  or  other 
legal  proceeding,  relating  to  the  property  of  the  [190] 
bankrupt."  {d) 

The  term  property  is,   for   the  purposes  of  the  Act, 

(rt)  "  Th«  trustee  of  the  property  of  a  l)ankrupt"  [who  is,  in  subseiiuenl 
rules  called  the  "trustee"]  occupies  the  position  of  the  assignees  in  hankiuplcy 
under  Hankruptcy  Acts  prior  lo  the  liankruplcy  Act,  1869.  This  must  he 
borne  in  mind,  since  in  all  the  hitherto  decided  cases  the  expression  "  assignee," 
or  "assignees,"  is  u>ed,  and  is  therefore,  for  the  sake  of  convenience,  tretpiently 
employed  in  the  explanation  of  this  and  other  rules  contained  in  the  chapters 
on  l)ankru|)ts. 

{/>)  Smith  V.  Coffin,  2  H.  I'd.  462,  judgment  of  Bui.l.KK,  J.  Compare  Rogers 
V.  Spence,  13  M.  &  W.  571,  581,  judgment  of  Dknman,  C.  J. 

(c)  bankruptcy  Act,  1869,  s.  17. 

(d)  Hankruptcy  Act,  1869,  s.  25,  cl.  3. 


2o8  PART//{S     TO    ACTIONS. 

given  a  wide  sense,  being  defined  to  mean  and  inciude 
"  money,  goods,  things  in  action,  land,  and  every  descrip- 
tion  of  propcrt}',  whether  real  or  personal;  also  obliga- 
tions, easements,  and  every  description  of  estate,  interest, 
and  profit  jircsent  or  future,  vested  or  contingent,  arising 
out  of  property  as  above  defined."  (e)  It,  moreover,  em- 
braces (among  other  things)  "  all  such  property  as  may 
belong  to  and  be  vested  in  the  bankrupt  at  the  commence- 
ment of  the  bankruptcy,  or  may  be  acquired  by  or  devolve 
on  him  during  its  continuance."  (/) 

The  present  Act  therefore  directly  {£■)  transfers  or 
assigns  to  the  trustee  all  the  rights  of  the  bankrupt  under 
contracts  with  hnn  and  for  his  benefit ;  hence  the  trustee, 
and  not  the  bankrupt,  must  sue  on  all  contracts  made  with 
the  latter,  as  well  for  unliquidated  (//)  as  for  liquidated 
damages,  whether  the  breach  occur  before  (z)  or  after  (/&) 
the  bankruptcy.  And  if  the  contract  is  executory,  and 
the  bankrupt  must,  in  order  to  claim  the  benefit  of  it,  do 
some  act  on  his  part,  the  trustee  may  (provided  the  act  is 
one  which  can  be  done  by  the  trustee)  perform  any  con- 
dition which  remains  to  be  performed,  and  thereupon 
claim  the  benefit  of  the  contract.  (/)  "  In  no  case  can  the 
party  w'ho  contracted  with  the  bankrupt  set  up  the 
bankruptcy  against  the  assignees  as  a  reason  for  not  doing 
what  he  has  agreed  to  do.  Where,  indeed,  the  pay- 
[191]  ment  of  money,  or  the  performance  of  any  other 
duty  by  the  bankrupt,  forms  a  condition  precedent 
to  the  doing  of  the  act  w^iich  the  contracting  party  has 
agreed  to  do,  there,  unless  the  money  is  paid  or  duty 
performed,  either  by  the  bankrupt  or  his  assignees,  it  is 
plain  on  principles  altogether  independent  of  any  ques- 
tions arising  from  bankruptcy     .     .     .     that  no  obligation 

(e)  Ibifl.,  s.  4. 

(/)  Ibid.,  s.  15.     Compare  s.  11. 

(^)  Conf.  Rogers  v.  Spence,  13  M.  &  W.  571,  580,  judgment  of  Denman. 
C.J. 

(A)  Wright  V.  Fairfield,  2  B.  &  Ad.  727. 

(i)  Beckham  v.  Drake,  2  H.  L.  846  ;  10  L.  J.  356,  Ex. 

(k)  Gibson  v.  Carruthers,  8  M.  &  W.  321  ;  ri  L.  J.  138,  Ex.  ;  Schondler  ▼ 
Wace,  J  Camp.  587. 

(/)  Gibson  v.  Carruthers,  8  M.  &  W.  321  ,   ri  L.  J.  13S,  Ex. 


BANKRUPT    AND     TRUSTEE,  209 

exists  on  the  other  party  to  perform  his  part  of  the  en~ 
gagemcnt."  {m)  In  other  words,  "  every  beneficial  matter 
belonging  to  the  bankrupt's  estate  [vests  in  the  assignees'], 
and  amongst  others,  the  right  of  enforcing  unexecuted 
contracts  by  which  benefit  may  accrue  to  that  estate,  and 
such  as  ma}-  be  performed  on  the  part  of  the  bankrupt  by 
the  assignees In  order  to  enforce  these  con- 
tracts it  is  only  necessary  that  the  assignees  should  perform 
all  that  the  bankrupt  was  bound  to  perform,  as  precedent 
or  contemporary  conditions,  at  the  time  when  he  was 
bound  to  perform  them,  and  the  bankruptcy  has  no  other 
effect  on  the  contracts  than  to  put  the  assignees  in  the 
place  of  the  bankrupt,  neither  rescinding  the  obligations 
on  either  party  nor  imposing  new  ones,  nor  anticipating 
the  period  of  performance  on  either  side."  («) 

The  trustee,  further,  may  either  adopt  or  repudiate  the 
contracts  of  the  bankrupt  according  as  he  judges  them 
likely  to  prove  beneficial  or  the  contrary,  {p)  But  his 
repudiation  or  disclaimer  does  not  leave  in  the  bankrupt 
any  right  of  action,  for  if  a  contract  is  disclaimed  by  the 
trustee  it  is  to  be  considered  as  determined  from  the  date 
of  the  adjudication,  and  in  no  case  does  the  bankrupt  re- 
tain any  interest  under  it.  (/) 

The  bankrupt  can  not  sue. — The  bankrupt  can  not,  even 
with  the  assent  of  the  trustee,  sue  on  contracts  made  with 
him  before  bankruptcy  ;  for  the  effect  of  the  bankruptcy 
has  been  to  transfer  or  assign  his  rights  to  the 
trustee.  Hence,  where  a  person  was  entitled  to  a  [19?] 
commission  for  introducing  to  a  tradesman  a  pur- 
chaser of  the  tradesman's  business,  and  afterwards  became 
bankrupt,  and  the  assignees  disclaimed  all  title  to  the 
money,  it  was  held  that  the  bankrupt  could  not  bring  an 
action  for  it  in  his  own  name,  {q) 

The  rip-ht  of  a  trustee  to  sue  on  all  contracts  made 
with  the  bankrupt  is  subject  to  the  limitation  that  he  can 

(ni)  Gibson  v.  Carruthers.  8  M.  &  W.  333.  per  Tarkk,  B. 
(«)  Ibid.,  327,  judgment  of  Rolke,  B. 

(<»)  Ibid.,  321  ;    II  L.  J.  138,  Ex. ;   Bankruptcy  Act,  1869.  ss.  23,  14. 
(/)  Bankruptcy  Act,  '86q,  s.  23. 
(a)  Miliary  v.  Morris,  i  C.  &  P.  6. 
14 


2IO  PARTIES     TO    ACTIONS. 

not  sue  on  any  contract  in  which  the  bankrupt  has  not 
both  a  legal  and  also  a  benericial  or  equitable  interest. 
In  other  words,  the  creditor's  representative  can  not  sue 
on  contracts  with  regard  to  which  the  bankrupt  has 
rights  either  as  a  cestui  que  trust  or  merely  as  a  trustee. 

If  the  bankrupt  has  not  a  legal  interest  in  a  contract, 
but  simply  a  beneficial  interest,  the  contract  must  in  point 
of  law  be  made,  not  with  him,  but  with  some  other  per- 
son who  is  legally  interested  in  it,  and  is  the  right  person 
to  sue  upon  it.  (r)  Any  money,  however,  recovered  in 
such  an  action  vests  in  the  trustee  of  the  bankrupt's  prop- 
erty. If,  on  the  other  hand,  the  bankrupt  has  a  legal 
interest  in  a  contract,  but  has  no  beneficial  or  equitable 
interest  in  it  whatever,  he  must  himself  be  a  mere  trustee 
for  some  third  person.  No  interest  in  this  case  passes  to 
his  trustee,  {s)  The  bankrupt  retains  his  legal  interest  in 
the  contract,  and  must  sue  upon  it  in  his  own  name  for 
the  benefit  of  the  person  really  interested.  Though  where 
a  bankrupt  has  merely  a  legal  interest  in  a  contract, 
nothing  passes  to  his  trustee,  yet  if  the  bankrupt  has  any 
beneficial  interest,  however  small,  if,  that  is  to  say,  any 
portion  whatever  of  the  money  recovered  in  an  action 
upon  it,  would,  but  for  the  bankruptcy,  have  gone  to  the 
bankrupt  himself,  then  the  right  of  action  for  a  breach  of 
the  contract  passes  to  the  trustee,  who,  however,  re- 
covers partly  for  his  own  benefit  as  such  trustee, 
[193]  and  partly  for  the  benefit  of  the  cestui  que  trust,  or 
the  other  person  beneficially  interested.  (/) 

A  trustee  is  sometimes  both  legally  and  beneficially 
interested  in  a  contract,  and  therefore  able  to  sue  upon 
it,  though  the  bankrupt,  had  he  remained  solvent,  must 
have  sued  upon  it,  if  at  all,  for  the  benefit  of  some  third 
person.  This  is  the  result  of  the  doctrine  of  relation,  or 
the  rule  that  the  trustee's  title  to  the  property  of  the 
bankrupt  dates  back,  not  to  the  time  of  the  adjudication 

(r)  See  ante. 

{s)  Bankruptcy  Act,  i86g,  s.  15. 

(/)  D'Arnay  v.  Chesneau.  13  M.  &  W.  796,  809.  Compare  Parnham  v 
Hurst,  8  M.  &  W.  743  ;  Castelli  v.  Boddington,  i  E.  &  B.  66 ;  22  L.  J.  5,  Q 
B.  ;  Lush,  Practice,  3rd  ed.,  49. 


BANKRUPT    AND     TRUSTEE.  211 

of  bankruptcy,  but  to  the  commission  of  an  act  of  bank- 
ruptcy, or  as  it  is  called  in  the  Bankruptcy  Act,  1869,  the 
commencement  of  the  bankruptcy,  {ti)  The  trustee  being 
considered  for  legal  purposes  the  possessor  of  the  bank- 
rupt's property  at  a  time  before  he  was  adjudicated  a 
oankrupt,  can  often  annul  transactions  of  the  bankrupt 
and  act  as  having  both  a  legal  and  equitable  interest  in  a 
contract  in  which  the  bankrupt,  from  having  assigned  it  to 
a  third  party,  had  retained  a  merely  legal  interest. 

Suppose,  for  instance,  that  a  person,  after  the  commis- 
sion of  an  act  of  bankruptcy  on  which  he  is  subsequently 
adjudged  bankrupt,  but  before  the  date  of  the  adjudica- 
tion of  bankruptcy,  sells  to  some  third  party,  M.,  who 
knows  of  the  act  of  bankruptcy,  a  debt  due  to  him.  After 
the  adjudication  of  bankruptcy,  the  trustee  can  treat  the 
sale  as  void,  and  sue  for  the  debt,  though  it  is  manifest 
that  the  bankrupt  himself  could  have  sued  for  the  debt 
only  for  the  benefit  for  M.,  since  he  h.».d  parted  with  all 
his  equitable  interest  in  it.  {x) 

Exception  i  {y). —  Contracts,  the  breach  of  wi.  Ich  involves 
injury  to  the  person  or  to  the  feelings  ol  the  bar/Krupt. 

Though  "  the  general  principle  is,  tnat  all  rights    [194] 
of  the  bankrupt  which  can  be  exercised  beneficially 
for  the  creditors     .     .     .     pass  [to  the  assignees],  and  the 
right  to  recover  damages  may  pass,  though  they  are  un- 

(u)  Bankruptcy  Act,  1869,  s.  15. 

{x)  Compare  Bankruptcy  Act,  1869,  ss.  II,  15,  95. 

{y)  The  words  of  the  I5ankruptcy  Act,  1869,  transferrin^^  to  the  trustee  the 
property  of  the  bankrupt,  are  considerably  wider  than  the  expressions  employed 
in  the  corresponding  sections  of  earlier  Bankruptcy  Acts  (compare  Bnnkruptcy 
Act,  1S69,  ss.  4,  15,  and  17,  with  Bankruptcy  Act,  1849,  s.  141),  and  distinctly 
pass  to  the  trustee  the  bankrupt's  things  in  action,  under  which  term  may  be 
included  all  the  bankrupt's  rights  of  action  whatever,  whttlier  arising  from 
breach  of  contract  or  from  tort.  The  result  is,  that  whilst  it  is  certain  that  the 
trustee  can  sue  in  all  cases  in  which  the  assignees  could  have  sued,  it  can  not, 
in  the  abs<.-nce  of  decisions,  be  considered  as  established,  that  where  the 
assignees  could  not  sue  under  ihe  former  Acts,  the  trustee  can  not  sue  under 
lhe  present  Act.  In  other  words,  the  exceptions  to  the  foregoing  rule,  as  also 
the  exceptions  to  the  next  rule  as  well  as  the  validity  of  the  next  rule  itself, 
must  be  considered  as  open  to  doubt. 


212  PARTIES     TO    ACTIONS. 

liquidated,  this  pri!icii)lc  is  subject  to  exception.  The 
rii;ht  of  action  does  not  pass  where  the  dama^^cs  are  to  be 
estimated  by  immediate  reference  to  pain  felt  by  the  bank- 
rupt, in  respect  of  his  body,  mind,  or  character,  and 
without  immediate  reference  to  his  rights  ot  property. 
Thus  it  has  been  laid  down  that  the  assignees  can  not  sue 
for  breach  of  promise  of  marriage,  for  seduction,  defama- 
tion, battery,  injury  to  the  person  by  negligence,  as  by 
not  carrying  safely,  not  curing,  not  saving  from  imprison- 
ment by  process  of  law."  {s)  To  express  the  same  thing 
somewhat  differently,  "  there  are  some  exceptions  to  the 
generality  of  the  right  of  the  assignees.  In  cases  where 
the  personal  estate  is  only  affected  through  some  wrong 
or  injury  to  the  person  or  the  feelings  of  the  bankrupt, 
and  the  loss  or  gain  to  the  personal  estate  would  be 
greater  or  less,  according  to  the  compensation  given  for 
such  injury,  whether  by  breach  of  contract  or  otherwise, 
the  right  of  action  would  not  pass  to  the  assignees."  (a) 

The  damages  recovered  in  an  action  for  such 

[195]   breaches  of  contract,  during  the  continuance  of  the 

bankruptcy,  become  the  property  of  the  trustee,  (d) 

Exception  2. — Contracts  uncompleted  at  the  time  of  bank- 
ruptcy in  which  the  personal  service  of  the  bankrupt  is  of 
the  essence  of  the  contract. 

"  Executory  contracts  in  which  the  personal  skill  or 
conduct  of  the  bankrupt  forms  a  material  part  do  not  in 
general  pass  to  the  Trustee."  [c) 

A  distinction  must,  it  would  seem,  be  drawn  between 
two  kinds  of  contracts,  each  of  which  involve  the  personal 
service  of  the  bankrupt.  Such  contracts  may  be  either 
— first,  contracts  the  performance  of  which  is  rendered 
impossible  by  the  bankruptcy    {e.  g.,  a   contract  by  the 

(2)  Beckhaii  v.  Drake,  2  H.  L.  C.  603,  604,  opinion  of  Erle,  C.  J.  On  the 
question,  how  far  such  an  action  is  one  for  breach  of  contract,  see  ante. 

(a)  Ibid.,  617,  opinion  of  Wightman,  J. 

(b)  I  Griffith  &  Holmes,  Bankruptcy,  303  ;  Bankruptcy  Act,  1869,  s.  15  ;  cl 
3,  s.  II. 

(c)  Leake,  Contracts,  640. 


BANKRUPT    AND     TRUSTEE.  213 

bankrupt  to  enter  into  a  partnership) ;  or,  secondly,  con- 
tracts which,  though  they  can  not  be  performed  by  any 
one  but  the  bankrupt,  can  be  performed  by  him  in  spite 
of  the  bankruptcy,  e.  g.,  a  contract  10  write  a  book,  paint 
a  picture,  &c. 

The  law  to  the  first  class  of  contracts  is  clear.  Neither 
the  bankrupt  nor  the  trustee  can  perform  the  part  agreed 
to  be  performed  by  the  bankrupt,  and  therefore  neither 
the  bankrupt  nor  the  trustee  can  bring  an  action  against 
the  other  party  to  the  contract  for  non-performance  of  his 
Dart.  "  There  is  a  certain  class  of  contracts  in  which  it 
:s  manifest  that  bankruptcy  must  put  an  end  to  all  claim 
of  the  bankrupt  or  his  assignees  to  the  performance  of 
them  by  the  solvent  party.  The  contract  of  partnership 
is  a  familiar  instance  ;  and  in  every  case  where  the  motive 
or  consideration  of  the  solvent  party  was  founded,  wholly 
or  in  part,  upon  his  confidence  in  the  skill  or  personal 
ability  of  the  bankrupt,  if  the  bankrupt  from  his  circum- 
stances is  unable  to  perform  his  part,  the  assignees  are  not 
entitled  to  substitute  either  their  own  capacity,  or 
skill,  or  credit,  for  that  of  the  bankrupt."  {e)  "  It  can  [196] 
not  be  doubted,  that  where  a  contract  remains  to 
be  executed,  and  can  not  be  executed  without  the  co-op- 
eration of  the  bankrupt,  the  assignees  can  not  enforce  the 
contract,  at  all  events,  unless  they  can  procure  him  to 
co-operate."  (/) 

The  rule  as  to  the  second  class  of  contracts  is  not  so 
clear. 

The  bankrupt  may,  it  is  conceived,  himself  perform 
his  own  part,  e.g.,  write  a  book  or  paint  a  picture,  ai  d 
compel  the  other  party  to  perform  his  part  of  the  con- 
tract by  paying  for  the  book  or  picture.  The  matter  of 
doubt  is,  whether  an  action  against  the  purchaser  ought 
to  be  brought  bv  the  bankrupt  or  by  his  trustee.  Some 
expressions  used  in  the  passages  already  cited  suggest 
that  the   trustee    may  sue  if  the  bankrupt  performs  his 

(d)  Gibson  v.  Carrutlicrs,  8  M.  &  W.  343,  judgment  of  Lord  AuiNGER. 
C.  B, 

(/)  Beckham  v.  Drake.  2  H.  L.  C.  598.  opinion  ..1  Wii.i.lAMS,  J. 


214  PARTIES     rO    ACTIONS. 

part.  It  would,  however,  seem  that  under  the  former 
Bankruptcy  Acts  the  bankrupt  was  the  right  person  to 
sue  for  the  breach  of  any  contract  involving  the  personal 
skill  or  conduct  of  the  bankrupt.  Whether  this  is  so 
under  the  present  Act  is  questionable.  It  is  at  any  rate 
clear  that  the  trustee  can  not  sue  on  such  contracts  unless 
he  can  induce  the  bankrupt  to  perform  his  part,  and  that 
money  recovered  by  the  bankrupt  in  an  action  on  such  a 
contract  during  the  continuance  of  the  bankruptcy  is  the 
property  of  the  trustee. 

It  is  difficult  to  decide  whether  a  given  contract  is  one 
which  involves  the  personal  skill  of  the  bankrupt.  The 
assignees  have  been  held  the  proper  plaintiffs  in  an  action 
on  an  agreement  to  employ  the  bankrupt  as  foreman ;  (V) 
but  in  this  case  the  contract  was  broken  before  the  bank- 
ruptcy. Where  an  order  was  given  to  build  a  house,  and 
the  builder,  after  beginning  to  build  it,  became  bankrupt, 
and  the  house  was  afterwards  completed  by  the 
[197]  assignees,  they  were  held  entitled  to  recover  under 
the  order  ;  (/)  but  it  is  questionable  whether  the 
trustee  has  a  right  to  complete  a  contract  of  this  kind 
made  with  the  bankrupt,  {k) 

It  has  been  suggested  that  where  a  contract  made  with 
the  bankrupt  has  been  broken  before  the  bankruptcy,  the 
assignees  or  trustee  can  in  all  cases  sue  on  the  contract, 
whatever  its  nature,  "  that  is  to  say,  the  question  whether 
a  right  of  action  actually  vested  in  the  bankrupt  prior  to 
the  bankruptcy,  in  respect  of  a  contract  determined, 
passes  to  the  assignees,  is  not  affected  by  the  consideration 
whether  the  contract,  if  it  had  not  been  determined,  but 
had  remained  open  and  in  fieri  at  the  time  of  the  bank- 
ruptcy, would  have  passed  to  the  assignees,  and  could  have 
been  performed  by  them The  right  to  re- 
cover wages,  salary,  or  commission  [due  to  the  bankrupt 
at  the  time  of  the  bankruptcy]  would  pass  to  the  assignee? 
as  part  of  the  personal  estate,  without  regard  to  the  con- 

(g)  Ibid.,  579. 

(«■)  Whitmore  v.  Gilmour,  12  M.  &  W.  808,  810. 

{k)  Knight  V.  Hurgess,  33  L.  J.  727,  Ch. 


BANKRUPT    AND     TRUSTEE.  215 

sideration  whether  the  contract  or  services  had  had  rela- 
tion to  the  personal  skill  or  labor  of  the  bankrupt,  or  any 
confidence  reposed  in  him,  or  whether  the  contract  could 
have  been  performed  by  the  assignees  "  ;  (/)  and  this  view, 
even  if  doubtful  under  the  former  Bankruptcy  Acts,  is  in 
strict  conformity  with  the  terms  of  the  Bankruptcy  Act, 
1869,  by  which  the  bankrupt's  things  in  action  {in)  vest  in 
the  trustee.  The  trustee,  therefore,  is  apparently  the 
right  person  to  sue,  even  on  contracts  involving  the  per- 
sonal skill  of  the  bankrupt,  which  are  broken  bv  the  other 
party  before  the  bankruptcy. 

Rule  35. — For  the  breach  of  any  contract  [198J 
made  with  the  bankrupt  during  the  continu- 
ance of  the  bankruptcy  (in  which  the  bankrupt  has 
both  a  legal  and  a  beneficial  interest),  either  the 
trustee  may  sue  or  the  bankrupt  may  sue,  if  the  trus- 
tee does  not  interfere.  {11) 

The  remarks  as  to  the  right  of  the  trustee  to  sue  on 
contracts  made  with  the  bankrupt  before  bankruptcy 
apply  mutatis  mutandis  to  his  right  (which  is  undoubted) 
to  sue  on  contracts  made  with  the  bankrupt  during  the 
continuance  of  the  bankruptcy,  {d) 

The  right  of  a  bankrupt  to  sue  on  contracts  m.ade  with 
him  during  the  continuance  ot  the  bankruptcy  was,  under 
the  former  acts,  fully  established.  Thus,  where  a  bill  of 
exchange  was  endorsed  to  an  undischarged  bankrupt,  it 
was  held  that  he  could,  if  his  assignees  did  not  interfere, 
sue  upon  it,  and  that  a  plea  simply  alleging  that  the  bill 
was  endorsed  to  him  after  bankruptcy,  and  not  alleging 
that  the  assignees  interfered,  was  bad.  (/) 

(/)  Beckhivm  v.  Drake,  2  II.  L.  C.  632,  633.  per  WiLDK,  C.  J, 

(w)  Bankruptcy  Act,  1869,  s.  4. 

{;;)  Herbert  v.  Sayer,  5  Q.  B.  gf)5  ;  Kitchen  v.  liartscli.  7  East.  53;  Mor- 
gan V.  Kn=;-lit.  33  L.  J.  i63.  C.  P.  ;  15  C.  B..  N.  S.,  669;  2  Grilfilli  &  Holmes, 
Ijankru]3tcy,  934. 

(o)   Bankruptcy  Act,  1869,  ss.  4,  15. 

(/»)  Herbert  v.  Saver,  5  (\.  B.  965;  esp.  judtjment  of  Kx.  Ch.  981.  Com- 
pare Jackson  v.  Buniliam,  22  L.  J.  13,  Ex.  ;  8  Ex.   172. 


2i6  PARTIES     TO    ACTIONS. 

The  cases  which  establish  this  ri*^ht  were  decided  undei 
the  older  Acts,  but  they  appear  in  principle  to  apply  to 
the  present  Bankruptcy  Act.  It  may,  therefore,  in  the 
absence  of  decisions,  be  assumed  that  a  bankrupt  can,  if 
the  trustee  does  not  interfere,  sue  on  contracts  made  with 
him  during  the  continuance  of  the  bankruptcy.  The 
interference  of  the  trustee  affords  an  answer  to  the 
action,  {q)  and  the  money  recovered  is  the  property  of  the 
trustee. 

[199]  Exception  i. — Contracts,  the  breach  of  which  involves 

injury  to  the  person  or  the  feelings  of  the  bankrupt,  (r) 

Exception  2. — Contracts  t<:)  pay  for  the  personal  labor  of  the 
bankrupt  performed  after  his  bankruptcy. 

The  trustee,  though  entitled  to  sue  for  money  due  to 
the  bankrupt,  at  the  time  of  the  bankruptcy,  for  his  per- 
sonal labor,  (s)  can  not  sue  for  the  price  of  the  bankrupt's 
personal  labor  performed  after  his  bankruptcy.  (/)  An 
action  for  it  must  be  brought  by  the  bankrupt  himself, 
and  the  amount  recovered  is,  apparently,  recovered  to  the 
bankrupt's  own  use.  {v) 

The  expression  "  personal  labor  "  must  be  taken  in  a  re- 
stricted sense.  Where  a  trade  was  carried  on  by  a  bank- 
rupt by  the  leave  of  the  assignees  for  the  benefit  of  the 
estate,  the  right  of  action  on  the  bankrupt's  contracts 
passed  to  the  assignees,  {x)  In  one  case,  where  the  plain- 
tiff was  an  uncertificated  bankrupt,  and  his  business  was 
that  of  a  furniture  broker,  and  the  debt  sued  for  was  con- 
tracted in  the  removal  of  the  defendant's  goods,  for  which 

(q)  Herbert  v.  Sayer,  5  Q.  B.  965  ;  Kitclien  v.  Bartsch,  7  East,  53, 

(r)  See  ante. 

(s)  Beckham  v.  Drake,  2  H.  L.  C.  633. 

(/)  Chippendale  v.  Tomlinson,  7  East,  57,  note  (,^) ;  Silk  v.  Osborn,  i  Esp. 
140  ;  Crofton  v.  Poole,  l  B.  &  Ad.  56S  ;  Beckham  v.  Drake,  2  H.  L.  C.  604. 

{v)  The  expressions  of  Buller,  J.,  in  Kitchen  v.  Bartsch,  7  East,  57,  sug- 
gest  that  a  large  sum  of  money  recovered  by  the  bankrupt  for  his  personal 
labor,  might  be  held  by  him  for  his  trustee ;  and  the  effect  of  the  Bankruptcy 
Act,  1869,  ss.  4.  15,  must  be  considered. 

(x)  Elliot  V.  Clayton.  20  I,.  J.  217,  Q.  B. 


BANKRUPT    AND     TRUSTEE.  217 

the  plaintiff  had  procured  vans,  and  employed  assistants, 
the  court  held  that  the  demand  was  not  a  demand'  for 
mere  personal  labor,  so  as  to  bring  the  case  within  this 
exception,  (j)  A  bankrupt  has,  however,  been  allowed  to 
recover  under  this  exception  for  money  lent  and  materials 
supplied.  {2) 

Set-off.  (a) — A  defendant's  right  to  a  set-off  in  an 
action  by  a  bankrupt's  trustee  depends  in  part  upon  [200] 
the  ordinary  statutes  of  set-off,  (^)  and  in  part  upon 
the  Bankruptcy  Act,  1869,  s.  39,  which  re-enacts  and  ex- 
tends the  Bankruptcy  Act,  1849,  s.  171.  It  is,  therefore, 
more  extensive  than  the  right  possessed  under  the  general 
statute  of  set-off.  In  other  words,  a  defendant  in  an  ac- 
tion by  a  bankrupt's  trustee  may,  in  general,  set-off  the 
same  claims  which  he  might  set-off  in  an  ordinary  action 
by  the  bankrupt  had  he  remained  solvent,  and  also  other 
claims  which  could  not  be  made  the  subject  of  a  set-off  in 
an  ordinary  action,  (c) 

The  following  points  as  to  the  special  right  of  set-ofil 
as  against  a  bankrupt's  trustee  should  be  noted. 

I  St.  Debts  can  be  set-off  against  debts  as  in  the  case  of 
an  ordinary  action. 

2ndly.  Mutual  credits  can  be  set-off. 

The  term  "  mutual  credits  "  includes  "  all  credits  " 
which  must  of  their  nature  terminate  in  debts,  and  this 
"  means,  not,  as  has  been  contended  in  some  cases,  credits 
which    must   ex   necessitate  rei    terminate  in  debts,  but 

(/)  Crofton  V.  Toole,  i  B.  &  Ad.  568. 

(2)  Silk  V.  Osborn,  i  Esp.  140  ;  Evans  v.  Brown,  Tbid.,  170. 

(a)  "  Where  there  have  been  mutual  credits,  mutual  debts,  cr  other  mutual 
deaiinj^s  between  the  bankrupt  and  any  other  person  proving,  or  claiming  to 
prove,  a  debt  under  his  bankruptcy,  an  account  shall  be  taken  of  what  is  due 
from  the  one  party  to  the  other  in  re'^pect  of  such  mutual  dealings  ;  and  iht 
sum  due  from  the  one  party  shall  be  set-off  against  any  sum  due  from  the  other 
parly,  and  the  balance  of  such  account,  and  no  more,  slvall  be  claimed  or  paitl 
on  either  side  respectively  ;  but  a  person  shall  not  be  entitled  under  this  sec- 
tion to  claim  the  benefit  of  any  set-off  against  the  property  of  a  bankrupt  in 
any  case  where  he  had  at  the  time  of  giving  credit  to  the  bankrupt  notice  of  an 
act  of  bankruptcy  committed  by  such  bankrupt,  and  available  against  him  for 
adjudication."  Bankruptcy  Act,  1869.  s.  39.  Compare  with  this,  Bankruptcy 
Act,  1849,  s.  171 

(S)  2  (leo.  II.,  c.  22,  s.  13. 

(c)  See  1  Griffith  &  Ilulmes,  Bankruptcy,  2nd  ed.,  628. 


2^9  PARTIES     TO    ACTIONS. 

credits  which  have  a  natural  tendency  to  terminate  in 
debts,  not  in  claims  differing  in  nature  from  a  debt."  {d) 
Thus  a  claim  for  a  loss  on  a  policy  of  insurance  is  a  credit 
within  the  statute,  though  not  within  the  general  statutes 

of  set-off.  {c) 
[201]  Srdly.  All    debts   and    demands  may  be   set-off 

which  are  provcablc  against  the  bankrupt's  estate.  (/") 

4thly.  Notice  of  an  act  of  bankruptcy  is  the  point  at 
which  the  right  of  set-off  terminates,  /.  e.,  the  defendant 
can  not  set-off  credit  which  he  has  given  to  the  bankrupt 
after  notice  of  an  act  of  bankruptcy,  though  he  may  set-off 
credit  given  after  the  act  of  bankruptcy  itself,  if  he  did 
not  know  of  it.  {g) 

5thly.  Demands,  in  respect  of  which  set-off  is  claimed, 
must  be  strictly  in  the  same  right. 

In  an  action  by  the  trustee  of  a  bankrupt  upon  a  cause 
of  action  accruing  to  him  as  trustee  since  the  bankruptcy, 
unless  it  be  one  which  arose  out  of  a  credit  given  by  the 
bankrupt  before  the  adjudication  of  bankruptcy,  and 
before  notice  of  an  act  of  bankruptcy,  {h)  the  defendant 
can  not  set-off  debts  due  to  him  from  the  bankrupt  before 
bankruptcy,  {i)  Nor  does  the  statute  apply  where  the 
bankrupt  sues  as  a  trustee,  {k) 

Rule  36. — Actions  on  contracts  made  with  the 
ba#,krupt  after  the  "  close  of  the  bankruptcy  "  (/)  must 
be  brought  by  the  bankrupt. 

{d)  Rose  V.  Hart,  2  Smith,  L.  C,  6th  ed.,  267,  276. 

(e)  Beckwith  v.  Bullen,  27  L.  J.  162,  Q.  B.  ;  8  E.  &   B.  683  ;  Bullen.  Plead 
ings,  3rd  ed..  681. 

(/)  Rose  V.  Hart,  2  Smith,  L.  C,  6th  ed.,  267,  285.  This,  at  least,  was  '.he 
case  under  the  former  Bankruptcy  Act  (Bankrupt  Law  Consolidation  Act,  1849, 
s.  71).  The  language  of  the  Bankruptcy  Act,  l86g,  s.  39,  does  not  make  it  cleat 
whether  all  claims  that  are  proveable  are  the  subject  of  set-off.  Proveable 
claims  of  the  nature  of  damages  must  at  any  rate  be  assessed  before  they  can  be 
set-cff.     (Ibid.)     See  as  to  proveable  claims,  Chapter  XVIL 

(g)  Rose  V.  Hart,  2  Smith,  L.  C,  6th  ed.,  267,  275  ;  Dickson  v.  Cass,  i  B 
&  Ad.  343  ;  Hawkins  v.  Whitten,  10  B.  &  C.  217. 

(h)  Hulme  v.  Muggleston,  3  M.  &  W.  30;  Bittleston  v.  Timmins,  i  (*.  B 
389. 

(0  Wood  V.  Smith,  4  M.  &  W.  522  ;  Bullen,  Pleadings,  3rd  ed.,  682. 

{k)  Boyd  V.  Mangles,  16  M.  &  W.  337. 

(/)  Bankruptcy  Act,  1869,  s.  47. 


BANKRUPT    AND     TRUSTEE.  ?.ig 

When  the  whole  propert)'  of  the  bankrupt  has  been 
realized  for  the  benefit  of  his  creditors,  or  certain 
other  events,  more  particularly  described  in  the  [202 J 
Bankruptcy  Act,  have  taken  place,  the  Court  may 
make  an  order  that  the  bankruptcy  has  closed,  and  the 
bankruptcy  is  deemed  to  have  closed  at  and  after  the 
date  of  such  order.  (/) 

After  the  close  of  the  bankruptcy,  (;«)  the  bankrupt 
may  obtain  an  order  of  discharge,  or  he  may  not  obtain 
such  an  order,  and  thus,  even  after  the  close  of  the  bank- 
ruptcy remain  an  undischarged  bankrupt,  (n) 

A  bankrupt  who  has  obtained  his  discharge,  has  the 
same  rights  as  regards  future  contracts  as  a  person  who 
has  never  been  bankrupt,  and  is,  therefore,  of  course,  the 
person  to  sue  on  contracts  made  with  himself.  An  un- 
discharged bankrupt  has  also  (it  would  appear),  after  the 
close  of  the  bankruptcy,  the  same  right  to  make  contracts 
as  a  person  who  has  never  been  bankrupt,  and  no  right  to 
sue  on  such  contracts  vests  in  the  trustee,  or  in  any  per- 
son representing  the  trustee.  (<?) 


Rule  7,y. — All  the  trustees  must  join  in  suing. 

"  The  creditors  may,  if  they  think  fit,  appoint  more 
persons  than  one  to  the  office  of  trustee,  and  where  more 
than  one  are  appointed,  they  shall  declare  whether  any 
act  required  or  authorized  to  be  done  by  the  trustees, 
is  to  be  done  by  all  or  any  one  or  more  of  such  persons  ; 
but  all  such  persons  are  in  this  Act  (/)  included  under 
the  term  trustee,  and  shall  be  joint  tenants  of  the  property 
of  the  bankrupt."  {(/) 

All  the  trustees,  therefore,  it  would  seem,  must  join  in 
an  action  for  breach  of  contract,  (r)     That  is  to  say   the 

(/)  Bankruptcy  Act.  1869,  s.  47. 

(w)  Anrl  in  some  cases  before  it.     Bankruptcy  Act,  1869,  s.  48. 

(«)  Bankruptcy  Act,  1869,  s.  54. 

(o)  Ihid.,  s.  15. 

(/)  /.  <•.,  the  Bankruptcy  Act,  1869. 

\q)  Ibifl.,  s.  83,  cl.  I. 

(r)  Snelgrovc  v.  Hunt.  2  St.-irk.  424  ;  Jones  v.  Smith,  i  Kx.  831. 


220  PARTIES     TO    ACTIONS. 

non-joinder  of  a  trustee,  has  the  ordinary  effect  ol 
[203]    the  non-joinder  of  a  phiintiff  in  an  action  for  breach 
of  contract,  {s) 

Rule  38. — On  the  removal,  retirement,  death, 
&c.,  of  a  trustee,  his  rights  pass  to  and  vest  in  his 
successor. 

A  trustee  may  from  various  causes,  e.  g.,  removal, 
death,  bankruptcy,  &c.,  cease  to  be  a  trustee.  (/)  In  this 
case  the  property  passes  to  and  vests  in  his  successor : 
and  if  for  any  cause  there  is  no  trustee  acting  during  the 
continuance  of  the  bankruptcy,  the  registrar  of  the  court 
for  the  time  being  having  jurisdiction  ni  the  bankruptcy, 
acts  as  such  trustee,  {ti)  and  the  bankrupt's  property  vests 
in  the  registrar,  {v) 

Death  or  removal  during  action. — The  death,  removal, 
&c.,  of  a  trustee  during  the  progress  of  an  action  does 
not  cause  the  action  to  abate,  {w) 

Rule  39. — The  bankruptcy  of  a  plaintiff  does  not 
cause  the  action  to  abate. 

Formerly,  if  a  plaintiff  became  bankrupt  during  the 
course  of  action,  the  vesting  of  his  rights  of  action  in 
the  assignees  could  be  pleaded  in  bar  to  the  further 
maintenance  of  the  action,  and  the  action  could  thus 
be  put  an  end  to.  Now,  however,  bankruptcy  can  not  be 
pleaded,  unless  the  trustee  declines  to  continue  the  action, 
or  else,  though  not  declining  to  continue  it,  declines 
[204]    to  give  security  for  costs,  {x)     If  the  trustee  gives 

(s)  Rule  13. 

(t)  Bankruptcy  Act,  1869,  s.  83,  cl.  1-6. 

{li)  Ibid.,  cl.  3. 

{v)  Ibid.,  cl.  6. 

(w)  This  was  expressly  provided  under  Bank.  Law  Con.  Act,  1849,  s.   157 
Compare  Bankruptcy  Act,  1869,  s.  83,  cl.  7. 

{x)  C.  L.  P.  Act.  1852,  s.  142.  It  should  be  noticed  that  C.  L.  P.  Act.  1852. 
ss.  135-142,  have  no  application  to  actions  commenced  after  bankruptcy.  Stan 
ton  V.  Collier,  3  E.  &  B.  274  ;  23  L.  J.,  116.  Q.  B. 


BANKRUPT    AND     TRUSTEE.  221 

security  for  costs,  and  proceeds  with  the  action,  it 
should  be  carried  on  in  the  name  of  the  bankrupt  up  to 
final  judgment,  {y) 

Rule  40. — If  an  action  be  brought   by  the  bank 
rupt  in  cases  in  which  the  trustee  must   sue,  or  b> 
the  trustee  in  cases  in  which  the  bankrupt  must  sue, 
the  error  is  fatal. 

If  a  bankrupt  sues,  e.  g.,  for  a  debt  owing  to  him  before 
bankruptcy,  or  his  trustee  sues,  e.  g.,  on  a  contract  in 
which  the  bankrupt  has  no  beneficial  interest,  the  action 
must  fail,  for  in  either  case  it  is  brought  by  a  plaintiff  who 
has  no  cause  of  action  ;  and  the  error  is  one  which  does 
not  admit  of  amendment,  {s)  since  the  law  does  not  permit 
the  substitution  of  a  right  for  a  wrong  plaintiff,  {a) 

{y)  Day,  C.  L.  P.  Act,  3rd  ed.,  123 

{z)  See  Chapter  XXXIV. 

(a)  Liqiiidaiion  by  Arrangement.  Under  the  Bankruptcy  Act,  1869,  there 
may  take  place  instead  of  a  bankruptcy  a  liquidation  by  arrangement.  Under 
such  an  arrangement  a  trustee  is  appointed,  whose  powers  and  duties  are  thus 
defined  : — The  trustee  under  a  liquidation  shall  have  the  same  powers  and  per- 
form the  same  duties  as  a  trustee  under  a  bankruptcy,  and  the  property  of  the 
debtor  shall  be  distributed  in  the  same  manner  as  in  a  bankruptcy  ;  and  with 
the  modifications  hereinafter  mentioned,  all  the  provisions  of  this  Act  shall,  so 
far  as  the  same  are  applicable,  apply  to  the  case  of  liquidation  by  arrangement 
in  the  same  manner  as  if  the  word  'bankrupt '  included  a  debtor  whose  affairs 
are  under  liquidation,  and  the  word  'bankruptcy'  included  liquidation  by 
arrangement  ;  and,  in  construing  such  provisions,  the  appointment  of  a  trustee 
under  liquidation  siiall,  according  to  circumstances,  be  deemed  to  be  equivalent 
to,  and  a  substitute  for,  the  presentation  of  a  petition  in  bankruptcy,  or  the 
service  of  such  petition,  or  an  order  of  adjudication  in  bankruptcy."  Bank- 
niptcy  Act,  1869,  s.  125,  cl.  7. 


222  PARTIES     TO    ACTIONS. 


CHAPTER  X. 

EXECUTORS,    ADMINISTRATORS,    AND    HEIRS. 

Rule  41. — The  personal  representatives  of  a 
I  ^ceased  person  (J.  e.,  his  executors  or  administra- 
t  >rs)  can  sue  on  all  contracts  of  whatever  description 
n)ade  with  him,  whether  broken  before  or  after  his 
death. 

The  rights  and  liabilities  of  a  deceased  person  are 
represented  by  two  classes  of  representatives.  The  first 
class  consists  of  his  personal  representatives,  i.  e.,  his 
executor  or  executors,  or  administrator  or  administra- 
tors, (a)  The  second  class  consists  of  real  representatives, 
/.  e.,  the  heir  or  devisee.  The  personal  representatives 
entirely  represent  the  deceased,  and  possess,  speaking 
generally,  all  his  rights,  and  are  liable  for  all  his  responsi- 
bilities, in  so  far  as  they  have  assets  {i.  e.,  to  the  amount 
of  his  personal  estate),  the  rights  and  liabilities  of  which 
they  in  fact  represent,  {b)  Co-executors  (or  co-admin- 
istrators) have  a  joint  interest,  and  incur  joint  liabilitie 
and  €tand  in  many  respects  in  the  position  of  partners. 
The  real  representative,  i.  e.,  the  heir  or  devisee,  repre- 
sents the  deceased  less  completely  than  does  an 
[206]  executor.  The  heir  or  devisee  represents  in  fact 
the  rights  and  liabiHties  of  the  real  estate.  He  can 
sue  only  in  respect  of  injuries  to  it,  and   is  liable  only  in 

{a)  The  powers  and  liabilities  of  executors  piid  administrators  are,  speaking 
generally,  the  same.  The  executor  is  a  representative  appointed  by  the  will  ; 
the  administrator  is  the  representative  £jenerally  of  an  intestate,  and  appointed 
by  letters  of  administration  issued  by  the  Ci.urt  of  Probate.  See  as  to  an  ad- 
ministrator cum  testamento  annexe,  I  Williams,  Executors,  6th  ed.,  490. 

^b)  Compare  2  Williams,  Excutors,  6th  ed.,  1529,  and  following. 


EXECUTORS  AND  ADMINISTRATORS.      223 

so  far  as  the  real  estate  has  come  to  him,  and  as  it  is 
bound. 

The  personal  representatives,  as  representing  the  per- 
sonal estate  of  the  deceased,  may  sue  on  all  contracts  with 
him,  whether  broken  in  his  lifetime  or  subsequently  to  his 
death,  the  breach  of  which  occasions  damage  to  the  per- 
sonal estate,  {c) 

"  With  respect  to  such  personal  actions  as  are  founded 
upon  any  obligation,  contract,  debt,  covenant,  or  other 
duty,  the  general  rule  has  been  established  from  the 
earliest  times,  that  the  right  of  action  on  which  the 
testator  or  intestate  might  have  sued  in  his  lifetime  sur- 
vives his  death,  and  is  transmitted  to  his  executor  or 
administrator.  (^/)  Therefore  it  is  clear  that  an  executor 
or  administrator  shall  have  actions  to  recover  debts  of 
ever}'  description  due  to  the  deceased,  either  debts  ot 
record,  as  judgments,  statutes,  or  recognizances;  or  debts 
due  on  special  contracts,  as  for  rent ;  or  on  bonds,  cove- 
nants, and  the  like,  under  seal;  or  debts  on  simple  con- 
tracts, as  notes  unsealed,  and  promises  not  in  writing 
either  express  or  implied."  {e)  Again,  "  it  is  claar  that 
in  many  cases  an  action  on  which  the  deceased  himsell 
could  not  have  sued  may  accrue  to  the  executor  or 
administrator  in  his  own  time,  upon  a  contract  made  with 
the  testator  or  intestate  in  his  lifetime,"  (/)  or,  in  other 
words,  that  he  can  sue  on  contracts  made  with  the 
deceased  but  broken  after  his  death. 

Thus,  if  X.  enters  into  a  contract  with  M.  by  deed,  or 
if  X.  gives  a  bill  to  M.,  or  contracts  with  M.  by  word  ot 
mouth,  or  does  any  act  which  gives  M.  a  right  to 
sue  him  in  the  form  of  an  action  for  breach  of  con-    [207] 
tract,  though  the  act  may  partake  of  the  nature  of 
a  tort,  {g)  A.,  the  executor  of  M.,  may  sue  X.,  though  the 

{c)  Kaymond  v.  Fitch.  2  C.  M.  &  R.  596,  597,  jiKl(;mciit  of  TiNDAl.,  C.  J.  , 
Broom,  Maxims,  4th  ed.,  870.  871. 

((/)  The  right  of  executors  to  sue  is  extended  to  admiiiisliators  by  statute, 
3T  Edw.  III.,  s.  I,  c.  II. 

(<•)   I  Williams,  Executors,  6th  ed.,  739,  740. 

(/)  Il,id.,  827. 

(g)  See  ante  ;  Knights  v.  Quarles,  2  B.  &  B.  102  ;  4  Moo.  532.  See  Alton 
v.  Midland  Kail.  Co..  19  C.  B..  N.  S.  213  ;  34  \..  J.  -jg2.  C.  I' 


224  'PARTIES     TO    ACTIONS. 

cause  of  action  accrued  during  INI.'s  life,  and,  A.  may  also 
sue  X.,  supposing  the  contract  made  with  M.  was  not 
broken  until  after  M.'s  death,  and  thus  the  cause  of  action 
(//)  did  not  arise  during  M.'s  life.  The  personal  represen- 
tatives, further,  so  completely  represent  the  deceased,  that 
(generally  speaking)  an  executor  or  administrator  may 
sue  on  a  contract  in  which  he  is  not  named.  Thus,  if 
money  be  made  payable  to  A.  without  naming  his  ex- 
ecutor, yet  his  executor  or  administrator  can  have 
an  action  for  it.  So,  if  money  be  payable  to  A.  or  his 
assigns,  his  executor  may  sue  for  it,  as  he  is  assignee  at 
law.  (/) 

The  executor  or  administrator  is  the  only  representa- 
tive of  the  deceased  that  the  law  will  regard  in  respect  of 
his  personalties,  and  no  words  introduced  into  a  contract 
or  obligation  can  transfer  to  another  his  exclusive  right 
of  representation.  Thus  A.,  as  administrator  of  M., 
brought  an  action  upon  a  promise  made  to  M.  to  pay 
upon  M.'s  marriage,  "  to  M.,  his  heirs  or  executors,"  fifty 
guineas,  and  the  action  was  held  to  be  rightly  brought, 
although  the  plaintiff  did  not  show  that  the  money  had 
not  been  paid  to  the  intestate's  heir;  the  ground  of  the 
decision  was  that  by  the  law  all  personalties  and  rights  to 
personalties  are  given  to  the  executors  or  administrators, 
as  all  realties  and  rights  to  realties  are  given  to  the  heir  ; 
the  executors  or  administrators  being  a  man's  representa- 
tives in  respect  of  his  personalties  in  like  manner  as  the 
heir  in  respect  of  his  realties  ;  (/)  and  so,  if  X.  binds  him- 
self to  M.  to  pay  a  certain  sum  of  money  to  M.  or 
[208]  his  heirs,  M.'s  executors  or  administrators,  and  not 
his  heirs,  have  a  right  to  the  money,  and  should 
sue  for  it.  {k)  So,  again,  an  executor,  &c.,  is  the  person 
to  sue  upon  a  promise  made  to  the  deceased  for  the  ex- 
clusive benefit  of  a  third  party.  (/) 

{h)  See  ante. 

{i)  I  Williams,  Executors,  6th  ed.,  742  ;  Com.   Dig.,  Administrator  (B.  13). 
(J)  Devon  v.  Pawlett,  11  Vin.  Abr.  133,  pi.  27  ;  l  Williams,  Executors,  7th 
ed.,  740 

(k)  S.  P.  Fitz.,  N.  B  ,    120,  I.,  9th  ed.  ;   i  Williams,  Executors,  6lh  ed,  741. 
(/)  Ibid.,  759,  76c;  Rules  10,  11. 


EXECUTORS  AND  ADMINISTRATORS.      22$ 

Exception  i. — Contracts,    the    breach  of  which    occasioned 
merely  personal  suffering  to  the  deceased. (w) 

No  one  can  sue  for  a  breach  of  contract  where  the 
damage  occasioned  consisted  entirely  in  the  personal 
suffering  of  the  deceased.  Thus  no  action  can  be  brought 
for  a  breach  of  promise  of  marriage  to  the  deceased,  {n) 
"  for  executors  and  administrators  are  the  representatives 
of  the  temporal  property,  that  is,  the  debts  and  goods  of 
the  deceased,  but  not  of  their  wrongs,  except  where  those 
wrongs  operate  to  the  temporal  injury  of  their  personal 
estate."  {p)  "  So  with  respect  to  injuries  affecting  the 
life  and  health  of  the  deceased  :  all  such  as  arise  out  of 
the  unskillfulness  of  medical  practitioners  ;  the  imprison- 
ment of  the  party  brought  on  by  the  negligence  of  his 
attorney  ;  generally  speaking,  no  action  can  be  sustained 
by  the  executor  or  administrator  on  a  breach  of  the  im- 
plied promise,  by  the  person  employed  to  exhibit  a  proper 
portion  of  skill  and  attention  :  such  cases  being,  in  sub- 
stance, potions  for  injuries  to  the  person."  (/) 

If  a  breach  of  contract  affects,  not  onl}^  the  person  of  the 
deceased,  but  his  per-sonal  estate  also,  the  executor  can 
sue  for  the  consequential  damage,  {q)  Where  A  ,  the 
administrator  of  M.,  sued  X.  for  negligence  as  attor- 
ney of  M.  in  investigating  the  title  of  certain  lands  [209] 
which  were  to  be  conveyed  to  M.,  in  consequence 
of  which  M.  took  an  insufficient  title,  whereby  his  personal 
estate  was  mjured,  the  action  was  held  to  lie,  and  the 
court  held  "that  it  made  no  difference  in  this  case 
whether  the  promise  was  express  or  implied,  the  whole 
transaction  resting  on  a  contract  that  though  perhap? 
the  mtestate  might  have  brought  case.  {r)or  assumpsit,  (j) 

(w)  Conf.  an/f. 

(n)  Chamberlain  v.  Williamson,  2  M.  &  S.  408. 
{0)  Ibid.,  415,  judgment  of  Ellenborough,  C.  J. 
(/>)  I  Williams,  Executors,  6th  ed.,  753. 

(y)  Broom,  Maxims,  4th  ed.,  871,  872  ;  i   Williams,  Executors,  6th  ed.,  751 
752. 

(r)  /.  e.,  an  action  for  tort,  sec  ante. 

(s)  I.  e.,  an  action  for  lircach  of  contract,  see  ante. 


226  PARTIES     TO    ACTIONS. 

at  his  election,  assumpsit  being  the  only  remedy  for  the 
administrator  it  was  very  necessary  that  the  action  should 
be  maintained.  ...  It  was  further  observed,  that  if  a 
man  contracted  for  a  safe  conveyance  by  a  coach,  and 
sustained  an  injury  by  a  fall,  by  which  his  means  ot 
improving-  his  personal  property  were  destroyed,  and  that 
[iropertv  in  consequence  injured,  though  it  was  clear  that 
he,  in  his  lifetime,  might  at  his  election  (/)  sue  the  coach 
proprietor  in  contract  or  in  tort,  it  could  not  be  doubted 
that  his  executor  might  sue  in  assumpsit  for  the  conse- 
quences of  the  coach  proprietor's  breach  of  contract."  {u) 

Exception  2. — Contracts  limited  to  the  lifetime  of  the 
deceased. 

On  a  contract,  expressly  limited  to  the  lifetime  of  the 
deceased,  it  is  clear  that  no  action  can  be  brought  by 
(or  against)  {u)  his  representatives  for  any  alleged  breach 
of  it  after  his  death. 

But  there  exist  also  contracts  which  are  held  as  a 
matter  of  law  to  be  determined  by  the  death  of  either 
party.  The  ground  on  which  they  are  held  so  de- 
[210]  terminable  is,  that  they  are  considered  to  be 
obviously  "  founded  on  personal  considerations," 
i.  e.,  made  with  reference  to  the  personal  qualities  of  the 
parties,  {x) 

Under  the  head  of  personal  contracts  fall  most  ob- 
viously undertakings  to  do  some  act,  e.  g.,  write  a  book, 


(/)  See  ante, 

{}()  Knights  V.  Quarles,  2  B.  &  B.  104,  105.  An  action,  might,  perhaps,  he 
brought  even  for  a  breach  of  promise  of  marriage,  if  the  executors  could  allege 
injury  to  the  deceased's  personal  estate  as  a  consequence  of  the  breach  of  prom 
ise  See  Chamberlain  v.  Williamson,  2  M.  &  S.  408  ;  Beckham  v.  Drake,  8  M 
&  W.  846,  854,  ccmpared  with  Alton  v.  Midland  Rail.  Co.,  34  L.  J.  292.  C.  P.  • 
19  C.  B.,  N.  S.  2T3.  See  as  to  actions  by  executors  where  the  deceased  has 
been  killed  through  negligence  of  the  defendant,  Chapter  XXIV. 

(v)  Chapter  XVIII. 

(x)  The  principle  applies  to  the  liabilities,  no  less  than  the  rights  of  execu- 
tors, and  can  therefore  be  illustrated  as  well  by  cases  of  actions  brought  against 
executors  as  of  actions  brought  by  them. 


EXECUTORS  AND   ADMINISTRATORS.      227 

paint  a  picture,  and,  it  is  said,  build  a  lighthouse,  (7)  the 
performance  of  which  depends  upon  the  skill  or  talent  of 
a  particular  person. 

All  contracts,  again,  ot  apprenticeship  fall  under  the 
description  of  personal  contracts.  On  the  death  of  the 
master,  the  apprentice  is,  unless  there  be  something  spe- 
cial in  the  agreement,  (-sr)  released  from  the  obligation  to 
serve,  and  the  executors  are  released  from  the  obligation 
to  teach,  though  not,  it  should  be  observed,  from  cove- 
nants to  maintain  him.  {a) 

All  contracts  of  agency  are  included  within  the  same 
class.  Thus,  where  A.  is  employed  as  an  agent  for  the 
sale  of  an  article,  he  can  not,  on  the  death  of  his  employer, 
sue  the  latter's  representatives  for  work  done  as  agent 
after  the  employer's  death,  {b) 

So  again,  where  A.  was  hired  by  M.  to  serve  as  farm 
bailiff  at  weekly  wages,  and  received  among  other  advan- 
tages a  residence  in  a  farm  house,  and  it  was  part  of  the 
contract  that  the  service  should  be  determinable  by 
six  months'  notice,  or  payment  of  six  months'  wages, 
it  was  held  that  M.'s  representative  was  not  bound  either 
to  continue  A.  in  her  service,  or  to  pay  him  six  month's 
wages,  {c) 

Exception  3. — Covenants  real  broken  during  the  life-  [211] 
time  of  tlie  deceased. 

'  Covenants  real,"  as  the  term  is  here  used,  {/)  mean 

{y)  2  Williams,  Executors,  6lh  ed.,  1593,  n.  (/).  Contrast  the  agreement  to 
build  a  house,  which  it  is  said,  a  man's  executors  are  bound  to  perform  (Quick- 
V.  Ludborrow,  3  Bulst.  30;. 

(z)  Cooper  v.  Simmons,  7  H.  &  N.  707  ;  31  L,  J.  13S.  ^I-  C. 

(a\  2  Williams,  Executors,  6th  ed.,  1631. 

{li)  Companari  v.  Woodburn.  15  C.  B.  400  ;  2.;  L.  J.  I3>  C.  F. 

(c)  Farrow  v.  Wilson,  L.  K.  4,  C.  P.  744.  Though  a  contract  is  limited  to 
the  lifetime  of  the  deceased,  his  representatives  may  sue  and  be  sued  for 
breaches  committed  before  his  death  (seeStubbs  v.  Holywell  Kail.  Co.  L.  R.  2. 
Ex.  311  ;  36  L.  J.  166,  Ex.),  and  a  contract,  which  appears  to  be  prima  facie  a 
personal  one,  may  be  made  by  its  express  terms  l<>  give  rights  to,  or  impose  lia- 
bilities upon,  the  representatives  of  the  deceased  (Cooper  v.  Siaimons,  7  li.  & 
N.  707;  31  L.J.  138,  M.  C). 

(/)  It  may  be  employed  as  including  all  covenants  which  run  with  the  land. 
>f  these,  those  which  affect  the  freehold  descend    to   the   real    representatives, 


228  PARTIES     TO    ACTIONS. 

"  covenants  which  both  run  with  the  land  and  descend  to 
the  heir  or  devisee,"  i.  e.,  covenants  which  affect  the 
freehokl.  These  covenants  will  go  to  the  heir  not  only 
when  he  is  not  named,  but  where  the  covenant  is  made 
with  the  covenantee  and  his  executor;  [g)  and  the  heir  is 
clearly  the  person  to  sue  for  any  breach  of  such  covenants 
committed  after  the  death  of  the  deceased. 

Where,  in  short,  the  benefit  of  covenants  annexed  to 
an  estate  in  land,  (//)  e.  g.,  for  title,  to  repair,  and  the  like, 
is  assigned  by  law  to  the  real  representative,  he  must  sue 
for  breaches  committed  after  the  death  of  the  deceased, 
and  the  sole  question  is  whether  the  personal  or  the  real 
representative  is  the  right  plaintiff  in  an  action  for  brea:hes 
committed  during  the  lifetime  of  the  deceased.  The  rule 
on  this  point  seems  to  be,  (?)  that  if  there  has  been  a 
formal  breach  of  such  covenants  during  the  ancestor's 
lifetime,  but  the  substantial  damage  has  taken  place  after 
his  death,  the  real  and  not  the  personal  representative  is 
the  proper  plaintiff  in  an  action  on  the  covenant.  "  Ac- 
cordingly where  an  executor  brought  an  action  upon 
covenants  for  title  contained  in  a  conveyance  of  land  to 
the  testator,  charging  breaches  in  the  testator's  lifetime, 
but  not  showing  any  damage  to  the  personal  estate, 
[212]  it  was  held  that  he  could  not  recover;  (/)  and  the 
devisee  of  the  same  land  having  brought  an  action 
for  the  same  breaches  of  the  same  covenants,  it  was  held 
that  he  was  entitled  to  maintain  the  action,  and  to  re- 
cover in  respect  of  the  deterioration  in  the  value  of  the 
land  by  reason  o^  the  defective  title."  {k)  The  executor, 
on  the  other  hand,  may  sue  for  a  breach  of  a  covenant 
real,  though  committed  in  the  lifetime  of  the  covenantee, 

those  which  aftect  chattel  interests,  to  the  personal  representatives.  Thus, 
if  a  feoffment  be  made  in  fee.  and  the  feoffor  covenant  to  warrant  the  land 
to  the  feoffee  and  his  heirs,  the  heir  of  the  feoffee  is  the  person  to  take  advan- 
tage of  the  covenant  (Touch.  178). 

( g)  I  Willisms,  Executors,  6th  ed.,  753,  754 

{h)  See  ante. 

(i)  Raymond  v.  Fitch,  2  C.  M.  &  R.  596,  judgment  of  Lord  Abinger,  C. 
B.  ;  Kingdon  v.  Nottie,  i  M.  &  S.  355. 

(7)  Kingdon  v.  Nottie,  i  M.  &  S.  355. 

{k)  Leake,  Contracts,  639;  and  see  Kingdon  v.  Nottie,  4  M.  i  S.  53. 


EXECUTORS  AND   ADMINISTRATORS.      229 

in  respect  of  any  damage  caused  thereby  to  the  personal 
estate.  (/) 

On  a  "collateial  covenant,"  by  which  is  here  meant  a 
covenant  which,  though  it  may  concern  the  realty,  does 
not  run  with  the  land,  the  executor  or  administrator  must 
sue.  Thus  on  a  covenant  in  a  lease  not  +0  cut  down  trees 
(the  trees  being  excepted  from  the  demise,  and  the  co\e- 
nant  therefore  being  collateral  and  not  running  with  the 
land),  the  executor  was  held  entitled  to  sue  for  a  breach 
committed  during  the  testator's  lifetime,  and  in  such  a 
case  no  special  damage  to  the  personal  estate  need  be 
alleged,  (m) 

Many  covenants,  moreover,  which,  in  the  most  general 
sense  of  the  words,  "  run  with  the  land,"  descend,  not  to 
the  heir,  but  to  the  executor,  that  is  to  say,  they  are  not 
"covenants  real."  These  covenants  are  not  collateral, 
for  they  are  annexed  to  an  estate  in  land,  but  the  estate, 
not  being  a  freehold,  does  not  descend  to  the  heir,  but  to 
the  executor  or  administrator.  Thus  where  the  deceased 
is  entitled  to  a  reversion  for  years,  and  a  covenant  has 
been  made  with  him  as  lessor,  the  executor  or  adminis- 
trator is  the  only  party  capable  of  suing  on  such  a  cove- 
nant ;  (n)  and  the  executor  of  a  tenant  for  years  is 
expressly  within  the  statute  32  Hen.  VIII.  c.  34,  [213] 
and  may  maintain  an  action  of  covenant  against  the 
assignee  of  the  reversion,  (p) 

The  effect  and  extent  of  this  exception  from  the  general 
rule  may  be  seen  from  the  following  examples : — 

jVL,  the  deceased,  is  possessed  of  a  freehold,  and  X. 
has  covenanted  with  him  for  title.  The  covenant  is  broken 
after  M.'s  death  ;  the  heir  is  the  only  person  who  can 
sue  for  the  breach.  Suppose,  on  the  other  hand,  the 
covenant  to  be  broken  before   M.'s  death,  the  right  per- 

(/)  l.eake,  Contracts,  639,  640  ;  Kingdon  v.  Nottle,  i  M.  &  S.  355.  364  •  4 
Ibid.,  53.  57;  Knights  V.  Quarlcs,  2  B.  &  B.  I02,  105;  I  Williams,  Executors 
6lh  cfl..  757. 

(w)  Raymond  v.  Fitch,  2  C.  M.  &  R.  588.  Compare  Ricketts  v.  Weavei 
la  M.  &  W.  718. 

(«)   Mackay  V.  Mackreth,  2  Chit.  461. 

(/>)   1  Williams,  Executors.  6th  cd.,  761. 


230  PARTIES     TO    ACTIONS. 

son,  prima  facie,  to  sue  is  the  heir,  but  the  executor  can 
sue  it"  he  can  show  damage  resulting  to  the  personal  estate 
of  M. 

Again,  M.  is  possessed  of  an  estate  for  years,  and  X. 
nas  covenanted  with  him  for  title,  and  the  covenant  is 
broken  both  before  and  after  the  death  of  M.  The  exec- 
utor is  the  only  person  who  can  sue. 

Lastlv,  X.  has  entered  into  a  covenant  with  M.,  the 
deceased,  which  is  not  of  a  kind  to  run  with  the  laud ; 
the  executor  is  the  only  person  who  can  sue  for  a  breach 
of  such  covenant,  whether  committed  before  or  after  M.'s 
death. 

Lessor  and  Lessee. 

1st.  For  arrears  of  rent  due  before  the  death  of  the 
lessor,  the  executor  must  in  all  cases  sue,  whatever  the 
nature  of  the  lessor's  interest  in  the  land,  {q) 

2d.  Where  rent  becomes  due  after  the  death  of  the 
lessor,  the  proper  party  to  sue  for  it  is  the  person  to 
whom  the  lessor's  interest  in  the  land,  or,  in  other  words, 
the  reversion,  passes.  If  the  reversion  is  a  chattel  inter- 
est, e.  g.,  a  lease  for  years,  the  executor  should  sue,  and  so, 
too,  where  no  reversion  remains  with  the  lessor.  If,  on 
the  other  hand,  the  reversion  is  a  freehold  interest,  e.  g., 
an  estate  for  lives,  the  heir  must  sue. 

3d.  Where  the  lessor  dies  before  the  rent  for  any 
[214]  given  period  has  become  actually  due,  i.  e.,  during 
the  period  intervening  between  one  rent  day  and 
another,  though  the  heir  is,  if  the  reversion  goes  to  him, 
the  proper  person  to  sue  for  the  whole  of  the  rent  when 
It  becomes  due,  yet  the  rent  when  recovered  is,  under  4 
Will.  IV.,  c.  22,  s.  2,  apportioned  between  the  executor 
and  the  heir. 

The  effect  of  the  statute  is  that  the  person  to  whom 
the  reversion  passes,  who  before  the  Act  would  have  been 
entitled  to  the  whole  of  the  rent,  still  sues  for  it.  The 
executor,  &c.,  however,  can  recover   from  him  the  por- 

f<7)   Ibid.,  771- 


EXECUTORS  AND  ADMINISTRATORS.      231 

tion  of  the  rent  due  for  the  period  preceding  the  lessor's 
death. 

The   statute  applies  only   to   leases  granted  after  its 
passing. 

Exception  4.— Contracts  on  which  the   deceased  must  have 
sued  jointly  with  other  persons,  {r) 

SUBORDINATE   RULE    I. 

An  executor  can  commence  an  action  before  probate ;  bnt  an 
administrator  can  7iot  commence  an  action  before  letters 
of  administration  granted  to  him. 

The  interest  of  an  executor  in  the  estate  of  the  de- 
ceased is  derived  exclusively  from  the  will,  and  vests  in 
the  executor  from  the  moment  of  the  testator's  death,  {s) 
and  his  title  dates  or  relates  back  to  the  date  of  the  death. 
An  administrator,  on  the  other  hand,  derives  his  author- 
ity entirely  from  the  appointment  of  the  court;  (/)  and  no 
right  of  action  in  general  accrues  to  him  until  he  has  sued 
out  letters  of  administration.  One  consequence  of  this  is 
that  an  executor  can  commence  an  action  before  probate. 
It  is  true  that  he  can  not  maintain  an  action  without 
obtaining  probate,  {u)  but  he  may  advance  an  [215] 
action  as  far  as  that  point  where  the  production  of 
probate  becomes  necessary,  and  it  will  be  sufficient  if  he 
obtains  probate  in  time  for  that  exigency.  (/)  He  can 
issue  a  writ,  declare,  &c.,  without  taking  out  probate,  and 
can  support  his  declaration  by  showing  at  the  trial  that  he 
has  proved  the  will.  {£)  But  if  an  administrator  commences 

(*■)  .See  Rule  i6  for  explanation. 

(c)  Williams,  Executors,  6th  ed.,  595,  601. 

(/)  Il)i(l.,  389,  596. 

(m)  See,  however,  as   to    actions    grounded    on   actual    posscsMon,  Chapter 
XIX. 

(/)  I  Williams,  Executors,  6th  ed.,  296. 

(z)  If,  linwcvcr,   ail   executor  commences   an   action  before  probate,  the  de- 
fendant may  apply  to  the  court    to   slay  proceedings  until  proi)atc  is  taken  out 
and  notice  thereof  given   to  the  defendant  aVebb   v.  AlWins,  14  C.  B.  401  ;  23 
L.  J.  96,  C.  P.). 


!32 


PARTIES     TO    ACTIONS. 


an  action  before  letters  of  administration  are  granted,  he 
must  fail,  for  at  the  time  the  action  was  brought  he  had  no 
right  of  action,  and  can  not  support  his  claim  at  the  trial 
by  showing  that  he  sued  out  letters  of  administration  after 
the  commencement  of  the  action,  {a) 

SUBORDINATE    RULE   II. 

On  the  death  of  a  plaintiff  the  action  can  be  carried  on  by  his 
executor  or  administrator. 

The  death  of  a  plaintiff  does  not  now,  as  it  did  for- 
merly, cause  an  action  to  abate,  {p) '  or  put  an  end  to  it. 

{a)  I  Williams,  Executors,  6th  ed.,  3S9,  390. 

The  representative  of  a  foreigner  must,  if  he  sues  in  a  representative  charac- 
ter, obtain  probate  or  letters  of  administration  in  order  to  maintain  an  action 
in  this  country  (Vanquelin  v.  Bouard,  15  C.  B.,  N.  S.,  341  ;  33  L.  J.  78, 
C.  P.). 

{b)  C.  L.  P.  Act,  1852,  s.  135. 

I.    The   code    provides  that    an  tuted  as  a  party  by  ex  parte  motion, 

action  shall  not  abate  by  the  death  proof  of  his  appointment  and  quali- 

or  disability  of  a  party,  or  by  the  fication     being    made.     Taylor    v. 

transfer  of  any  interest  therein,  if  W.  P.  Ry.  Co.,  45  Cal.  336  ;  Stock- 

the  cause  of  action  survive  or.  con-  ing  v.  Hanson,  22  Minn.  545. 


tinue.  Moss  v.  Shear,  30  Cal.  475  ; 
Camarillo  v.  Fenlon,  49  Cal.  206; 
Elliott  V.  Teal,  5  Sawyer,  190. 

The  court  may  allow  the  action 
to  be  continued  by  or  against  the 
representative  or  survivor  in  inter- 
est of  any  party  dead  or  disabled. 


The  death  of  the  nominal  plain- 
tifif  pending  suit  will  not  cause 
abatement.  McNaffy  v.  Share,  2 
Pa.  376  ;  Grand  Gulf  Bank  v.  Jef- 
fers.  12  Sm.  &  M.  487. 

But  all  personal  actions  die  with 
the     person.     Keite    v.    Boyd,    16 


and  in  case  of  any  other  transfer  of    Serg.  &  R.  300  ;  Holmes  v.  Moor^, 

5  Pick.  258;  Baker  v.  Dansbee,  7 
Heisk.  230. 

Under  the  Ohio  Civil  Code,  \  399, 
which  provides  that  "  no  action 
pending  in  any  court  shall  abate  by 
the  death  of  either  or  both  the  par- 
ties thereto,  except  an  action  for 
libel  or  slander,  *  *  *  which 
shall  abate  by  the  death  of  the  de- 
fendant," an  action  for  slander  does 
not  abate  by  the  death  of  the  plain- 
tiff during  its  pendency.  Alpin  v. 
Merton,  21  Ohio  St.  536. 


interest,  substitution  of  the  trans- 
feree will  be  allowed  or  the  action 
may  be  continued  in  the  name  of 
the  original  party.  Cox  v.  New 
York  Cent.,  &c.,  R.  R  Co.,  63  N. 
Y.  415;  Walker  v.  Felt,  54  Cal. 
386 ;  Chicasaw  Co.  v.  Pitcher,  36 
Iowa,  596;  2  Utah,  272;  French  v. 
Edwards,  4  Sawyer,  128. 

The  death  of  a  party  may  be 
suggested  at  any  stage  of  the  suit. 
Judson  V.  Love,  35  Cal.  469. 

His  administrator  may  be  substi- 


EXECUTORS  AND  ADMINISTRATORS.      211 

If  the  cause  of  action  is  one  which  survives  to  the  repre- 
sentatives, that  is  to  say,  if  it  is  one  on  which  the  executor 
or  administrator  might  commence  an  action,  the  executor, 
&c.,  may  continue  it  by  taking  the  proceedings  pointed 
out  by  the  Common  Law  Procedure  Act,  1852,  s.  137. 

Almost  all  rights  of  action  grounded  on  contract  pass, 
as  appears  from  the  foregoing  rule,  to  the  personal  repre- 
sentative, who,  therefore,  may  continue  such  actions  when 
commenced  by  the  deceased. 

He    can    not    (it    is    conceived)    continue   an    [216] 
action  for  a  breach  of  promise  of  marriage,  or  per- 
haps on  a  covenant  real,  where   no   actual  damage   has 
accrued  from   the    breach   of    the   covenant,    since   such 
causes  of  action  do  not  pass  to  him.  {c) 

If,  however,  the  plaintiff  die  between  verdict  and 
ludgment,  the  executor,  &c.,  may  enter  up  judgment  even 
though  the  cause  of  action  would  not  have  survived,  {d) 


Rule  42. — An  executor  or  administrator  : — 

1.  Must  sue  in  his  representative  character  on  all 
contracts  made  with  the  deceased,' 

2.  May  sue  either  in  his  representative  or  in  his 
personal  character  on  contracts  made  with  him  as 
executor  after  the  death  of  the  deceased.'' 

{c)  See  Exceptions  i  and  3,  ante. 

\d)  Palmer  v.  Cohen,  2  B.  .&  Ad.  q66  ;  Kramer  v.  Waymark,  L.  R.  i,  Ex. 
241.     Sec  generally,  Day,  C.  L.  P.  Acts,  3rd  ed.,  115- 121. 

1.  Luques  v.  Thompson,  26  Me.  254;  Lawrence  v.  Vilas,  20  Wis. 
527;  Webb  V.  Fish,  4  N.  J.  L.  374;  405;  Rector  v.  Langham,  i  Mo. 
Lucas  V.  Byrne,  35  Mo.  49;  Alex-  560;  Hemphill  v.  Hamilton,  11 
andcr  v.  Wriston,  81  N.  C.  193;  Ark.  425  ;  Claiborn  v.  Yeoman,  15 
Shaw  V.  Wilkins.  8  Humph.  649;  Tex.  46;  or  in  his  individual  capac- 
Kellogg  V.  Malin,  62  Mo.  430;  ity  ;  Cobb  v.  Wood,  8  Cush.  230; 
Mohr  V.  Sherman,  25  Ark.  425;  Leland  v.  Manning,  4  Hun,  9  ;  Bur- 
Sanford  V.  McCreedy,  28  Wis.  106.  ton    v.    Slaughter,   26   Gratt.   723; 

2.  May  sue  in  his  fiducir.ry  ca-  McGehee  v.  Slater,  5  Ala.  436; 
pacity.     Carlisle  v.  Burlcy,  3  Mc.  Laycock  v.  Oleson,  60  111.  31  ;  Hall 


234  PARTIES     TO    ACTIONS. 

When  the  cause  of  action  {/)  arose  wholly  or  in  part 
in  the  lifetime  of  the  deceased,  the  representative  must 
declare  in  his  representative  character  ;  (/)  but  where  the 
cause  of  action  arose  wholly  after  the  death,  the  executor 
may  sue  as  such  or  not  at  his  option,  {g)  provided 
that  the  money  to  be  recovered  would  be  assets  of  the 
estate,  {h) 

These  principles,  applied  to  actions  on  contract,  pro- 
duce the  following  results: — 

I  St.  On  all  contracts  made  with  the  deceased,  wnether 
broken  before  or  after  his  death,  an  executor  or  adminis- 
trator must  sue  in  his  representative  character,  (z) 
[217J  2nd.  When  a  contract  is  made  with  an  executor, 

he  may  sue  either  in  his  own  name  personally  (as 
being-  the  party  contracted  with),  or  in  his  representative 
character,  if  the  money  to  be  recovered  would  be  assets 
of  the  estate  ;  (/)  and  this  he  may  do  not  only  in  cases 
where  the  consideration  flows  from  the  deceased,  but  also 
m  cases  where  the  consideration  flows  directly  from  him- 
self as  executor.  Thus  an  executor  may  declare  as  such 
not  onl}^  on  an  account  stated  with  him  as  executor  con- 
cerning  money  due  to  the  testator  from   the  defendant, 

{e)  See  ante 

(/)  Bullen,  Pleadings,  3rd  ed.,  153;  2  Williams,  Executors,  6lh  ed., 
1727. 

ig)  Ibid. 

(/4)  Ibid. 

{{)  But  see  Gallant  v.  Boutflower,  3  Doug.  34. 

(0  Bullen,  Pleadings,  3rd  ed.,  153. 

V.  Pearman,  20  Tex.  170;  Lassiter  287;   Shawhan  v.  Long,  26  Iowa, 

V.  Obin,  II  Ark.  450;  and  so  on  a  490;  Huey  v.  Huey,  Id.  528. 
judgment  obtained  by  the  admin-        When  an  administrator  takes  a 

istrator.     Page  v.  Cravens,  3  Head,  note  in  his  representative  capacity, 

583  ;  Hunt  V.  Lisle,  6  Yerg.  417.  in  the  event  of  his  death,  his  execu- 

An  executor  leasing  premises  be-  tor  has  his  action  thereon  in  his  own 

longing  to    the    estate,  in    his    in-  name.     Block  v.  Dorman,  51   Mo. 

dividual    capacity,     may    recover  31;     McCoy    v.  Gilmore,  7  Ohio, 

thereon    in    the     same    capacity.  270;  Thompson  v.  Badham,  70  N. 

Kingsland  v.    Ryckman,    5   Daly,  C.  142  ;  Stanley  v.  Stanley,  42  Conn. 

14;  McDowell  V.  Hendrix,  71  Ind.  540. 


EXECUTORS  AND  ADMINISTRATORS.      235 

but  also  on  an  account  stated  with  him  as  executor  con- 
cerning money  due  to  him  as  executor,  and  raa)^  maintain 
an  action  as  executor  for  money  lent  by  him  as  executor. 
So  where  the  testator  agreed  to  do  certain  work,  and 
died  before  the  work  was  begun,  and  the  executors  did 
the  work,  using  the  testator's  materials,  and  brought  an 
action  in  their  representative  character  for  work  and 
labor  done,  and  goods  sold  and  delivered  by  them,  as 
executors,  it  was  held  that  they  might  recover  the  value 
of  the  materials,  and  perhaps  also  for  work  and  labor  as 
executors;  {m)  and  so  where  a  coat  had  been  ordered  by 
the  defendant  of  a  tailor,  and  had  been  cut  out  and  tacked 
togfether  and  tried  on  during  the  tailor's  lifetime,  but  was 
finished  and  delivered  after  his  death  by  his  administra- 
trix, it  was  held  that  she  could  not  sue  for  the  price  ot 
the  goods  as  for  goods  sold  and  delivered  by  the  intestate, 
but  that  the  proper  form  of  action  was  for  goods  sold  and 
delivered  by  her  as  administratrix.  {71) 

An  executor  or  administrator  must,  when  suing  as 
executor,  &c.,  claim  the  amount  due  to  him  accord- 
ing to  the  facts  of  the  case,  as  an  amount  due  [218] 
either  to  the  deceased,  or  to  the  plaintiff  as  execu- 
tor. Where,  for  example,  a  debt  is  due  to  M.  before  his 
death,  A.,  his  executor,  must  claim  it  as  executor,  de- 
scribing it  as  a  debt  due  to  M.  Where,  on  the  other 
hand,  money  is  due  to  A.  as  executor,  in  consequence  of 
a  contract  made  with  A.  after  the  death  of  M.,  A.  may 
claim  it  either  in  his  own  name,  or  as  executor ;  but  if  he 
claims  it  in  the  latter  character,  he  musi  describe  the 
money  claimed,  not  as  money  due  to  M.,  but  as  money 
due  to  himself  as  executor. 

Set-off.  —  I  St.  In  an  action  by  an  cxecuior  or  adminis- 
trator, as  such,  for  debts  due  to  the  deceased,  the  defend- 

(/«)  Mar>hall  v.  IJrondluirsi,  i  C.  &  J.  403;  Edwaiil  v.  Grace.  2  M.  &  W. 
190. 

(«)  Werner  v.  Humphreys.  2  M.  &  G.  S53  ;  lO  L.  J.  214,  C.  P.  See  i  Wil- 
liams. Executors,  6ih  e-i.,  823-827.  If  an  executor  continues  to  cany  on  the 
business  of  the  deceased,  and  inters  into  contracts  in  the  course  of  doing  so,  it 
would  seem  that  he  can  not  sue  in  his  representative  character,  but  must  .sue  in 
bis  own  right.     Bolingbrokc  v.  Kerr,  I,.  K.  i,  \'.\.  222. 


J  30  PARTfHS     TO    ACTIONS. 

int  can  set-ofT  debts  due  to  him  from  the  deceajed,  but 
can  not  set-oIT  debts  due  to  him  from  the  executor  or  ad- 
ministrator in  his  private  capacity. 

2nd.  In  an  action  by  an  executor,  &c.,  in  his  represen- 
tative character,  for  debts  due  to  him  as  executor,  after 
the  death  of  the  deceased,  the  defendant  can  not  set-off 
debts  due  from  the  deceased  to  the  defendant.  (/) 

3rd.  In  an  action  for  debts  by  an  executor,  «!ii:c.,  in  his 
own  name,  the  defendant  can  not  set-off  debts  due  to  him 
from  the  deceased,  but  can  set-off  debts  due  to  him  from 
the  plaintiff,  {q) 

SUBORDINATE  RULE. 

An  executor  or  administrator  can  not  Join  claims  made  in 
his  representative  tvith  claims  made  in  his  personal 
character. 

A.,  the  executor  of  M.,  can  not  in  the  same  action  claim 

debts  or  damages  due  to  him  personally,  together  with 

debts,  &c.,  due  to  him  as  executor  of  M.     A  declaration 

in  which  such  claims  were  joined  would  be  wholly 

219]    bad,  or,  in  other  words,  demurrable,  is)     He  may, 

however,  join  any  claims  in  respect  of  which  the 

money  recoverable  would  be  assets ;  he  may,  e.  g.,  claim 

as  executor  debts  due  to  M.,  and  debts  due  to  himself  as 

executor  of  M.  {t)     An  executor,  when  he  sues  in  his  own 

name,  can  join  any  claim  which  he  makes  as  an  individual 

Rule  43. — Co-executors  (71)  or  co-administrators 
(^x)  must  all  join  as  plaintiffs  in  an  action, 

(/)  2  Williams,  Executors,  6th  ed.,  1732,  1803;  Rees  v.  Watts,  11  Exch. 
410  ;  25  L.  J.  30,  Ex.  (Ex.  Ch);  Watts  v.  Rees.  9  Exch.  6g8  ;  23  L.  J.  238, 
Ex.;  Scholfield  v.  Corbett,  11  Q  B  779;  Tegetmeyer  v.  Lumley,  Willes, 
264,  n. 

(q)  Bullen,  Pleadings,  3rd  ed.,  153. 

(:)  2  Wms.  Saund.  I17  e;  Bullen,  Pleadings  3rd  ed.,  152;  Davies  v 
Davies,  i  H.  &  C.  451  ;  31  L.  J.  476,  Ex. ;  2  Williams,  Executors,  6th  ed. 
1729. 

{t)  Edwards  v.  Grace,  2  M.  &  W.  190;  Dowbiggin  v.  Harrison,  9  B.  &  C 
666  ;  Bullen,  Pleadings,  3rd  ed.,  152. 

(m)  2  Williams,  Executors,  6th  ed.,  895. 

{x)  Ibid..  852. 


EXECUTORS  AcVD  ADM IXISTRA  TORS.      237 

Co-executors  have  community  of  mterest  m  the  goods, 
or  personal  property,  of  the  deceased,  and  therefore  must 
all  join  in  suing,  even  though  some  be  infants  {y)  or 
bankrupts,  {z)  or  have  not  proved  the  will,  {a)  And 
where  one  of  several  co-executors  is  a  married  woman, 
she  and  her  husband  must  join  in  the  action,  {b) 

If  one  of  several  executors  sues  alone,  the  defendant 
can  take  advantage  of  the  error  by  a  plea  in  abatement 
oniy.  {c) 

Ei*^cpuon  I. — Where  a  contract   is  made  with  sonie  of  sev 
era!  co-executors  only. 

If  a  c  Mitract  is  made  with  some  alone  of  several  co- 
executors,  those  only  can  sue  on  the  contract  with 
whom  it  is  made.     Where,  for  example,  A.,  B.,  and    [220] 
C.  were  co-executors,  and  A.  and  B.  authorized  an 
attorney  to  receive  rents  due  to  the  estate,  and  to  give 
receipts  in  their  name,  it  was  held  that  C.  could  not  join 
in  an  action  against  the  attorney  for  the  money  collected. 
{/)     Whether  in  any  particular  instance  a  contract  was 
made  with  some  only  of  several  executors,  e.  g.,  A.  and 
B.,  in  their  individual  characters,  or  with  some,  e.  g.,  A. 
and  B.  as  agents  for  the  others,  and  therefore  with  all  of 
them,  is  a  question  of  evidence.  (/) 

Exception  2. — Where  an  executor  renounces  the  executor- 
ship. 

Under  20  &  21  Vict.  cap.  yy,  s.  79,  an  executor  may 
renounce  probate.     When  he  has  done  this  he  can  not. 

(y)  Smith  v.  Smith,  Velv.  130. 

{z)  Compare  i  Williams,  Executors,  6th  ed.,  226,  227 

(a)  Brookes  v.  Stroud,  I  Salk.  3  ;  2  Williams,  Executors,  6th  ed.,  894. 

{b)  See  ante. 

{c)  Cabell  v.  Vaughan,  I  Wms.  Saund.,  291  /;  2  Williams,  Executors,  6ih 
ed.,  1725.  This  is  an  exception  to  the  general  rule,  that  the  non-joinder  of  a 
plaintiff  in  an  action  ex  contractu  is  a  fatal  error.    See  Cliapter  .X.XXIV. 

(e)  Heath  v.  Chilton,  12  M.  &  VV.  632. 

{/)  Hroom,  Parties,  s.  ijl  a. 


238  PARTJES     TO    ACTIONS. 

of  course,  join  in  any  action  brought  by  the  other  execu- 
tors. 

SUBORDINATE   RULE. 

Cm'  co-executor  or  co-administrator  can  not  bring  an  action 
against  another  concerning  matters  connected  with  the 
executorships 

Generally  speaking,  it  is  clear  that  one  executor  can 
not  sue  or  be  sued  by  his  co-executor.  { g)  This  is  a 
result  of  the  fact  that  co-executors  are  jointly  interested 
[\\  the  property  of  the  deceased,  and  is  an  exemplification 
of  the  general  rule,  that  the  same  person  can  not  be  both 
plaintiff  and  defendant.  Hence,  after  the  death  of  one  of 
several  executors,  his  executor  can  not  be  sued  by  the 
surviving  co-executors  for  a  debt  due  to  their  testa- 
tor. (//) 

Another  result  is  that  several  executors  or  adminis- 
trators can  not  maintain  an  action  in  right  of  the  deceased 
upon  a  contract  made  by  the  defendant  with  one  of 
themselves.  Hence,  to  an  action  by  several  executors,  it 
was  held  a  good  plea  in  bar  that  the  promises  sued 
[221]  upon  were  made  by  the  defendant  jointly  with  one 
of  the  plaintiffs;  and  Mr.  Justice  Buller  said, 
"  The  promise  was  made  jointly  with  one  of  the  plaintiffs. 
How  can  he  sue  himself  in  a  court  of  law?  It  is  impos- 
sible to  say  a  man  can  sue  himself."  {k) 

If,  nevertheless,  a  debtor  makes  his  creditor  and  anothe. 
his  executors,  and  the  creditor  neither  proves  the  will 
nor  acts  as  executor,  he  may  bring  an  action  against  the 
other  executor.  (/) 

{g)  2  Williams.  Executors,  6th  ed.,  895.     Rule  5. 
{h)  Ibid.,  895. 

(k)  Moffat  V.  Van  Millinf^en,  2  B.  &  P.  124,  note  (<r) ;  i  Williams,  Executors, 
6th  ed.,  853,  854. 

(/)  2  Williams,  Executors,  6th  ed.,  276. 

I.  A  bill  for  account  may  be  And,  by  statute,  an  administrator 
maintained  between  joint  execu-  de  bonis  non  may  call  his  removed 
tors.     Stiver  v.  Stiver,  8  Ohio  220.     predecessor    to    account    touching 


EXECUTORS  AND  ADMINISTRATORS       239 

Rule  44. — On  the  death  of  a  co-executor  or  co- 
administrator, his  rights  of  action  pass  to  the  survi- 
vors, and  ultimately  to  the  last  survivor. 

This  is  a  mere  illustration  of  the  general  rule  as  to  the 
effect  of  death  on  persons  who  have  a  joint  right  of  action 
on  a  contract.  (;«) 

Rule  45. — The  executor  of  a  sole  or  of  a  sole 
surviving  executor  represents  the  original  testator  , 
but  the  admin. strator  of  an  executor  docs  not  repre- 
sent the  testator,  nor  does  the  administrator  of  an 
administrator,  or  the  executor  of  an  administrator 
represent  the  original  intestate. 

Suppose  M.  to  be  a  testator,  and  A.  his  executor. 

On  the  death  of  A.,  A.'s  executor  represents  M.  But 
if  A.  dies  intestate,  A.'s  administrator  does  not  represent 
M. 

Suppose  M.  to  be  an  mtestate,  and  A.  is  his  ad- 
ministrator,   neither    A.'s    administrator    nor   A.'s    [222] 
executor  will  represent  M. 

Where  an  executor  dies  without  proving  the  wil],  his 
executor  does  not  represent  the  original  testator.  («) 

(w)  Rule  16. 

(«)  I  Williams,  Executors,  6th  ed.,  244-246. 

the    entire    administration    of   the     Farris  v.  Berry,  33  Tex.  704;  Ker- 
estate.  Giles  v   Brown,  60  Ga.  661  ;     rin  v.  Robertson,  49  Mo.  254. 
Helsley  v.   Craig,    33   Gratt.   717; 


240  PARTIES     TO    ACTIONS. 


CHAPTER   XI. 

ACTIONS    ON    CONTRACT. 
DEFENDANTS.— GENERAL   RULES. 

Rule  46. — No  person  can  be  sued  for  a  breach  of 
contract  who  is  not  a  party  to  the  contract,  (a)  ' 

The  ground  on  which  one  person  is  liable  in  an  action 
on  contract  at  the  suit  of  another  is,  that  he  has  made  to 
the  latter  person,  either  directly  or  indirectly,  either  ex- 
pressly or  as  the  result  of  his  acts,  such  a  promise  as  the 
law  considers  binding,  and  has  broken  this  promise.  No 
one,  therefore,  who  is  a  stranger  to  a  contract  can  be 
sued  upon  it ;  or,  in  other  words,  no  one  can  be  sued  for 
the  breach  of  a  promise  except  the  person  who  has  made 
the  promise,  {b) 

The  mere  fact,  therefore,  that  X.  has  received  a  benefit 
from  A.,  will  not,  of  itself,  render  X.  liable  to  be  sued 
by  A.  Thus  A.'s  voluntary  courtesy  is  not  the  ground 
of  an  action  ;  {c)  and  if  A.  voluntarily  and  without  any 

(a)  Or  who  does  not  incur  liabilities  as  representing  an  original  party  to  the 
contract,  Rule  lO,  note  {a\,  ante, 
{b)  Rule  7- 
{c)  Lampleigh  v.  Braithwait,  i  Smith,  L.  C,  6th  ed.,  139. 

I.    Anderson     v.     Longden,     i  by  parties."    2  Whart.  Cont,  \  784. 

Wheat.  85;    Shear  v.  Mallory,  13  Nat.  Bank  v.  Grand  Lodge,  98  U. 

Johns.  497.     "  It  would,  in  fact,  be  S.   123  ;  Segars  v.  Segars,   71   Me. 

destructive   to   society  if  strangers  530;  Warren  v.  Batchelder,  15  N, 

could  intervene  and  undertake  liti-  H.   129;  Hall  v.   Huntson,    17   Vt. 

gations  in   accordance  with    their  244;  Stoddard  v.  Ham,  129  Mass, 

own  interests  and  tastes,  and  such  383  ;    Colt   v.    Ives,   31    Conn.   25  ; 

intrusion  can  only  be  prevented  by  Burnett  v.  Jersey  City,  31  N.  J.  Eq. 

the   rigid    application   of   the   rule  341.     But  see  Allen  v.  Thomas,  3 

that  contracts  can  only  be  sued  on  Mete.  (Ky.)  198. 


ACTIONS    ON    CONTRACT.  241 

request  from  X.,  pays  X.'s  debts  or  otherwise  relieves 
him  from  liability,  A.  does  not  thereby  render  X.  liable 
to  be  sued  by  him.  id)  M.  was  employed  by  the  defen- 
dants, X.  and  Co.,  to  carry  certain  goods  for  them.  M. 
delegated  the  whole  employment  to  A.  (the  plaintiff),  who 
carried  the  goods  without  any  communication  with 
X.  and  Co.  It  was  held,  that  A.  could  not  sue  X.  [224] 
and  Co.  for  compensation  for  the  work  done  by 
him,  (/)  since  there  was  "  no  privity  between  the  plain- 
tiff and  the  defendants.  There  was  nothing  by  which  the 
defendants  could  conjecture  that  the  plaintiff  would  be 
mtroduced  to  them  :  nothing  by  which  they  should  know 
that  they  should  ever  meet  with  such  a  person  as  the 
plaintiff.  The  defendants,  must,  indeed,  know  that  some 
persons  would  be  employed  under  M.,  ....  but 
there  is  nothing  whereby  they  ever  authorized  M.  to  em- 
ploy any  one  person  to  conduct  the  whole  [business]. 
.  .  .  .  The  defendants  looked  to  M.  only  for  the  per- 
formance of  the  work,  and  M.  had  a  right  to  look  to  the 
defendants  for  payment,  and  no  one  else  had."  {g)  Nor 
can  one  person  be  made  liable  to  another  on  a  contract  to 
which  he  does  not  assent,  in  consequence  merely  of  that 
other  meaning  to  deal  with  him  as  a  contractor.  This 
principle  is  illustrated  by  the  following  case,  {h)  the  facts 
of  which  appear  from  the  judgment  of  Bramwell,  B. 

"  The  admitted  facts  are,  that  the  defendants  sent  to  a 
shop  an  order  for  goods,  supposing  they  were  dealing 
with  [M.].  The  plaintiff,  who  supplied  the  goods,  did  not 
undeceive  them.  If  the  plaintiff  were  now  at  liberty  to 
sue  the  defendants,  they  would  be  deprived  of  their  right 
of  set-off,  as  against  [M.].  When  a  contract  is  made,  in 
which  the  personality  of  the  contracting  party  is  or  may 
be  of  importance,  as  a  contract  with  a  man  to  write  a 
book,  or  the  like,  or  where  there  might  be  a  set-off,  no 
other  person  can  interpose  and  adopt  the  contract.  As 
to  the  difficulty  that  the  defendants  need  not  pay  any- 

(d)  See  Pownal  v.  Ferraiid,  6  B.  &  C.  439,  443. 
(f)  Schmaliiig  v.  'riiomlinson,  6  Taunt.  147. 
(,^')  Ibid..  149,  judt;mcnt  of  (JiBlis,  C.  J. 
(/<)  Boulion  V.  Jones,  2  II.  &  N.  564  ;  27  L.  I.  117,  Ex. 
16 


242  PARTIES     TO    ACTIONS. 

body.  I  do  not  see  why  they  should,  unless  they  have 
made  a  contract  either  express  or  implied.  I  decide  the 
case  on  the  Sfround  that  the  defendants  did  not  know  that 
the  ])laintitT  was  the  person  who  supplied  the  goods,  and 
that  allowing  the  plaintiff  to  treat  the  contract 
[225]  as  made  with  him  would  be  a  prejudice  to  the  de- 
fendants." {i) 

Though  expressions  in  the  judgment  cited  suggest 
that,  under  some  circumstances,  the  plaintiff  might  have 
made  the  defendants  liable,  although  they  had  no  inten- 
tion of  dealing  with  them,  the  principle  of  the  case  seems 
to  be,  that  "  if  a  man  goes  into  a  shop  and  makes  a  con- 
tract, intending  it  to  be  with  one  particular  nerson,  no 
other  person  can  convert  that  into  a  contract  wuh  him." 
{k)  "  It  is  a  rule  of  law,  that  if  a  person  intends  to  con- 
tract with  A.,  B.  can  not  give  himself  any  right  under 
the  contract."  (/) 

The  following  rules  are  applications  to  the  different 
classes  of  contracts,  of  the  principle  that  no  one  can  be 
sued  on  a  contract  who  is  a  stranger  to  it. 

Rule  47  fixes  who  is  the  person  by  whom  a  simple 
contract  is  to  be  considered  made,  or,  in  other  words,  who 
is  the  person  who  is  to  be  sued  for  the  breach  of  a  simple 
contract. 

Rule  48  fixes  who  is  the  person  by  whom  a  contract 
by  deed  is  to  be  considered  made,  or,  in  other  words,  who 
is  the  person  who  is  to  be  sued  for  the  breach  of  a  con- 
tract by  deed,    i.  e.,  a  covenant,  {m) 

Rule  47. — The  person  to  be  sued  for  the  breach 
of  a  simple  contract  is  the  person  who  promises  or 
who  allows  credit  to  be  given  to  him. 

(i)  Boulton  V.  Jones,  2  H.  &  N.  566. 

(/■)  Ibid.,  judgment  of  Martin,  B. 

(/)  Ibid.,  565,  judgment  of  Pollock,  C.  B.  Compare  Hardman  v.  Booth,  I 
H.  &  C.  803  ;  32  L.  J.  105,  Ex. 

{tn)  All  the  real  or  apparent  exceptions  to  Rule  46  are  exceptions  to  Rule 
47,  and  are  considered  under  that  head. 


ACTIONS     ON    CONTRACT.  243 

To  constitute  a  simple  contract  there  must  be  a  prora- 
is  'r,  a  promisee,  and  a  consideration,  {n)  But, 
though  there  must  exist  a  consideration,  it  is  not  [226] 
necessar}'  in  order  to  bind  the  promisor  that  the 
consideration  should  be  anything  which,  in  the  ordinary 
use  of  the  word,  benefits  the  promisor.  Thus,  if  X.  prom- 
ise A.  to  pay  him  ;^ioo  a  year  in  consideration  that  A. 
will  marry  M.,  the  promise  is  binding  upon  X.,  and  A.,  if 
he  marries  M.,  may  sue  X.  for  the  non-payment  of  the 
;^ioo.  (<?)  If  X.  promise  A.  to  pay  for  goods  to  be  supplied 
by  A.  t9  M.,  X.  is  liable  to  be  sued  by  A.  for  the  price  of 
the  goods,  and  M.  is  not  liable. 

When  a  simple  contract  is  wholly  in  writing,  the  con- 
tract itself  points  out  who  it  is  who  promises,  and  who, 
therefore,  is  to  be  sued  for  a  breach  of  the  agreement. 
But  the  contract,  though  it  points  out  one  person  who  is 
liable,  need  not  point  out  the  only  person  who  is  liable; 
for  when  a  contract  is  simply  in  writing  {i.  e.,  not  under 
seal),  though  the  laws  of  evidence  do  not  allow  it  to  be 
shown  that  X.,  who  on  the  face  of  the  instrument  makes  a 
promise  to  A.,  is  not  liable  on  the  contract,  the}'  place  no 
difficulty  in  the  way  of  showing  that  some  other  person, 
Y.,  is  also  liable,  {p)  Nor,  again,  where  a  contract  is 
expressly  made  by  word  of  mouth,  e.  g.,  where  X.  in  so 
many  words  promises  A.  to  pay  A.,  e.  g.,  for  goods  sup- 
plied to  M.,  can  there  arise  any  difficulty,  supposing  the 
facts  to  be  capable  of  proof,  in  fixing  upon  X.  as  at  any 
rate  one  person  to  be  sued  for  a  breach  of  the  contract. 

Difficulty  arises  when  the  contract  to  be  sued  upon  is 
not  an  "  express  contract,"  i.  e.,  an  agreement  expressed 
either  in  writing  or  distinctly  by  word  of  mouth,  but  a 
contract  arising  from  the  acts  of  the  parties,  e.g.,  in  the 
course  of  business  between  them. 

The  question  to  be  considered  in  this  case  is,  who  was 
the  person  who  allowed  the  plaintiff  to  give  credit  to  him, 

(m)  See  as  to  different  kinds  of  considerations,  Lamplciyli  v.  IJraithwait,  I 
>nilih,  L.  C,  6th  ed.,  142. 

V)  .Shadwell  v.  Shadweli.  8  C.  H.,  N.  S.,  159  :  30  I-  J.  I45.  C.  P. 
Sp)  Thomson  v.  Davenport,  2  Smith,  L.  C,  6lh  ed.,  349-361. 


244  PAR  Tins     TO    ACTIONS. 

or  placed  himself  in  such  a  position  as  to  entitle  the  p  ain- 
tilTtogive  crctlit  to  him.  X.,  for  example,  orders 
[227]  goods  in  compan}^  with  Y.,  to  be  sent  to  Y.,  who  re- 
ceives and  uses  the  goods.  In  settling  which  of  the 
two  A.,  the  vendor,  ought  to  sue  for  the  price  of  the  goods, 
the  point  to  be  determined  is,  whether  credit  was  given  to 
X.  or  to  Y.,  or  in  other  words,  whether  it  was  X.  or  Y.  who 
held  himself  out  to  A.  as  the  person  to  whom  A.  was  to 
look  for  payment.  The  fact  that  the  goods  were  sup- 
plied to  and  used  by  Y.  is  prima  facie  evidence  of  their 
being  supplied  on  his  credit ;  but  the  question  to  be 
decided  is  not  who  used  the  goods,  but  who  it  Was  who 
undertook  or  promised  by  his  acts  to  pay  for  them,  {q) 
Thus,  where  a  business  has  been  carried  on  by  an  execu- 
tor as  trustee  for  the  benefit  of  the  children  of  the  testa- 
tor, the  executor  has  been  held  personally  liable  for  debts 
mcurred  in  the  business,  because  credit  was  given  to  him 
(r)  and  in  various  instances  it  has  been  held,  that  the  per 
son  liable  for  the  I'epairs  of  a  ship,  or  for  goods  supplied 
to  a  ship,  is  not  necessarily  the  owner  ;  but  is  the  person 
on  whose  credit  the  work  was  done,  or  the  goods  sup- 
plied ;  [s)  since  "  it  is  perfectly  settled  now,  that  the 
liability  to  pay  for  supplies  to  a  ship  depends  on  the  con- 
tract to  pay  for  them,  and  not  on  the  ownership  of  the 
ship."  (/) 

So,  where  X.  and  Co.  were  registered  as  proprietors 
of  a  newspaper  under  6  &  7  Will.  IV.  c.  y6,  s.  6,  the  fact 
of  their  names  appearing  as  proprietors  was  held  not  to 
make  them  liable  in  respect  of  a  contract  specifically 
entered  into  by  M.,  the  real  proprietor  of  the  newspaper 
after  they   had   ceased  to   be    interested   in   it.   {71)     For 

iq)  Most  of  the  difficulties  in  choosing  the  right  defendant  in  an  action  ex 
contractu  arise  from  the  existence,  in  one  form  or  another,  of  the  relation  of 
principal  and  agent.     See  Ciiapter  XII. 

(r)  Viner  v.  Cadell,  3  Esp.  8S. 

is)  Young  V.  Brander,  8  East,  10  ;  Annett  v.  Carstairs,  3  Camp.  354  ;  Mitche- 
son  V.  Oliver.  5  E.  &  B.  410  ;  25  L.  J.  39,  Q.  B. 

(/)  Mitcheson  v.  Oliver,  5  E.  &  B.  443,  per  Curiam.  Compare  Myers  v. 
Willis.  17  C.  B.  77  ;  25  L.  J.  39,  C.  P.  ;  Brodie  v.  Howard,  17  C.  B.  lOg  ;  25  L 
J    57- C.  P. 

(«)  Holcroft  V.  Hoggins,  2  C.  B.  488  ;   15  !,.   J.  129,  C.  P. 


ACTIONS     ON    CONTRACT,  245 

''  the  question  in  this  case  "  was,  "  whether  the  de^  [228] 
fendants  were  contractors,  not  whether  they  were 
interested  as  proprietors  in  the  newspaper  wherein  the 
plaintiff  's  articles  appeared."  {x)  "  The  jury  found  that 
the  contract,  in  fact,  was  not  made  by  the  defendants,  or 
by  their  authority.  The  circumstance  of  the  defendants' 
names  remaining  as  registered  owners,  [did]  not  make 
the  contract  theirs,  if  it  was  made  by  the  plaintiff  exclu- 
'jively  with  another  party.  "  {y) 

Exception  i. — Actions  against  a  person  appointed  by  statute 
to  be  sued  on  behalf  of  others,  (s) 

Exception  2. — Actions  on  some  contracts  implied  by  law  or 
actions  quasi  ex  contractu,  {a) 

As  already  pointed  out,  the  law  often  allows  one  per- 
son to  sue  another  as  if  there  were  a  contract  between 
them,  though  in  point  of  fact  no  contract  exists.  In  other 
words,  a  person  who  has  not  made  a  promise  is,  under 
certain  circumstances,  liable  to  be  sued  as  if  he  had  made 
a  promise.  A  promise  on  his  part  is,  to  use  the  technical 
expression,  implied  by  law.  The  numerous  cases  in  which 
a  person  is  liable  to  an  action  for  money  had  and  received, 
though,  in  fact,  he  has  entered  into  no  contract  with  the 
plaintiff,  have  been  already  considered,  {b) 

The  action,  again,  for  money  paid  is  in  many  cases  an 
action  quasi  ex  contractu,  in  which  the  defendant  is  liable, 
not  because  he  has  made  any  i)romise,  but  because  the  law 
treats  him  as  if  he  had  made  a  promise.  Thus,  as  already 
pointed  out,  if  A.  renders  a  service  to  X.,  e.  g.,  pays  X.'s 
debts  without  any  express  or  tacit  promise  on  X.'s  part 
io  remunerate  him,    X.  is   not   liable   to   be  sued  by   A. 

Ix)   Ilo'.croft  V.  Hogfjins,  2  C.  H.  492,  judgment  of  TiNDAL,  C.  J. 

(/)  Ibid.,  494,  per  Ckkswkli.,  J. 

(z)  See  Rule  11,  Exception  I,  Rule  20,  Exception  i.and  Chapter  XIII. 

{a)  See  ante. 

(l>)  Sec  ante.  Sec  also  Ru.sell  v.  liell,  10  M.  &  W.  340,  352  ;  Hill  v.  Per- 
rott,  3  Taunt.  274;  Rumsey  v.  Nortli-Easl  Rail.  Co.,  32  L.  J.  244,  C.  P.  ;  IJ 
C.  H.,  N.  S.,  641. 


246  PARTIES     TO    ACTIONS. 

lor  payment.  But  if  A.  is  compclletl  to  make  a 
[229]    payment  wl'ich   X.  is  legally  compellable  to  make, 

or  to  do  anvthino-  which  X.  is  legally  compellable 
to  do,  (r)  X.  is  liable  to  an  action  on  contract  at  the  suit 
of  A.  ;  that  is,  X.,  who  has  made  no  promise  to  pay  A., 
is,  under  the  circumstances  of  the  case,  liable  to  be  sued 
as  if  he  had  made  a  promise  or  contracted  to  pay  A. 


Rule  48. — The  person  to  be  sued  for  the  breach 
of  a  contract  by  deed  is  the  person  by  whom  the 
contract  is  expressed  by  the  deed  to  be  made,  t.  e.,  the 
covenantor.  (^) 

The  covenantor  is  the  person  who  must  be  sued  for  a 
breach  of  covenant.  Where,  therefore,  X.  covenanted 
with  A.  for  himself  and  his  heirs  under  his  own  hand 
and  seal  for  the  act  of  Y.,  he  was  held  personally  bound 
by  his  covenant,  though  he  described  himself  in  the  deed 
as  covenanting  for  and  on  the  part  and  behalf  of  Y. 
"  The  court  said  that  it  was  impossible  to  contend  that 
where  one  covenants  for  another  he  is  not  to  be  bound  by 
it;  the  covenant  being  in  his  own  name  '  for  himself,  his 
heirs,  &c.'  There  is  nothing  unusual  or  inconsistent  in  the 
nature  of  the  thing,  that  one  should  covenant  to  another 
that  a  third  person  should  do  a  certain  thing,  as  that  he 
should  go  to  Rome.  The  party  to  whom  the  covenant  is 
made  may  prefer  the  security  of  the  covenantor  to  that 
of  his  principal.  Here  the  defendant  covenants  for  him- 
self, not  in  the  name  of  his  principal,  and  puts  his  own 

seal  to  it.  There  is  nothing  against  law  in  it  if  he 
[230]    will  bind  himself  for  his  principal."  {e)     The  cov 

enantor  is,  moreover,  the  only  person  who  can  be 
sued  for  the  breach  of  a  covenant.  (/) 

(c)  Lampleigh  v.  Braithwait,  i  Smith,  L.  C,  6th  ed  ,  137,  144 
{d)  Or  the  representatives  of  such  person.     Compare  further  Rule  12. 
(e)  Appleton  v.  Sinks,  5  East,  147,  14S,  per  CURIAM.     Comnare  Priestley  v 
Fern=e,  3  II.  &  C.  986  ;  34  L.  J.  175    Ex.,  judgment  of  Bramwell.  B. 
(/")  See  ante. 


ACTIONS     ON    CONTRACT.  247 

A  covenantor,  again,  may,  it  seems,  be  sued  on  a 
covenant  by  him  contained  in  a  deed,  inter  partes,  though 
himself  not  a  party  to  the  deed  ;  {g)  but  no  one  can  be 
sued  on  a  covenant  who  has  not  executed  a  deed,  for  "  it 
is  a  technical  rule  that  a  contract  under  seal  can  not  bind 
a  person  not  executing."  (Ji)  The  rule  as  to  a  covenantee 
and  a  covenantor  may  be  thus  summed  up.  A  covenan- 
tee can  not  sue  on  a  covenant  in  an  indenture  if  he  is  not 
a  party  to  the  deed,  but  he  can  sue  on  a  deed  which  he 
has  not  executed.  A  covenantor  can  be  sued  on  a  cove- 
nant in  an  indenture  even  though  he  is  not  a  party  to  the 
deed  ;  but  he  can  not  be  sued  on  a  covenant  in  a  deed 
which  he  has  not  executed. 


Rule  49. — Where  several  persons  are  jointly  lia- 
ble on  a  contract,  they  must  all  be  sued  in  an  action 
for  the  breach  thereof,  i.  e.,  joint  contractors  must  be 
sued  jointly.  (2)  ^ 

ig)  Salter  v.  Kidgley,  Carth.  76  ;  Coke,  I.itt.,  230  b.  Some  doubt  as  to  this 
is  expressed  by  Parke,  B.  ;  Beckham  v.  Drake,  9  M.  &  W.  95  ;  Lu.h,  Prac- 
tice, 3rd  ed.,  16,  note  z;  Davidson,  Precedents,  3rcl  ed.,  36.  Contrast  this  with 
the  rule  as  to  covenantees,  ante. 

{h)  Priestley  v.  Fernie,  3  H.  &  C.  986,  per  Bramweix,  B. 

(/)  See  ante. 

I.  All  the  obligors  in  a  joint  con-  vors  alone;   Harwood  v.  Roberts, 

tract  must  be  made  defendants  in  5  Me,  441  ;  Machette  v.  Magee,  9 

an  action  upon  it.     Page  v.  Brant.  Phila.  24;    Bingee  v.  Smith,  Dall. 

18    111.    37;    Munn    V.  Haynes,  46  (Tex.)  616;  Bennett  v.  Shillars,  7 

Mich.    143;    Beale  v.  Trudeau.   18  Tex.   602;    or   under   code  joint  y 

La.  Ann.  129;  Dougart  v.  Desan-  with  the  executor  of  the  decedent; 

gle.  10  Rob.  (La.)  432  ;  People  v.  Divine  v.  Duncan.  2  Abb.  N.  C.  33  ; 

Sloper.  I  Idaho.  183.     Unless  some  Claiborn  v.  Goodloe,  Cooke.  394; 

are     discharged     in     bankruptcy.  In  re  O'Flaherty.  7  La.  Ann.  640. 

Ivey  V.  Gamble.  7  Port.  546  ;  Dorn  A  judgment  for  or  against  one 

V.   O'Neale.  6    Nev.    158;    or  the  of  several  joir^l  debtors  is  a  bar  to 

statute   of    limitations   bars   some,  an  action  against  another.    Clinton 

Dunny   v.   Smith,    18   N.    Y.    568;  Bank  v.  Hart.  5  Ohio  St.  35;  Wil- 

Caswcll  v.  Englemann.  31  Wis.  96;  Hams  v.  Rogers,  14  Bush.  786. 

and  if  one  die,  against  the  survi-  AH  the  parties  liable  on  a  promis- 


248 


PARTIES     TO    ACTIONS. 


If  X.,  Y.,  and  Z.  are  joint  contractors,  they  should 
all  be  made  defendants  in  an  action  for  breach  of  the 
contract,    and    if  X.    alone    is    sued,  he    may    by  proper 


sory  note  or  bill  of  exchange,  resi- 
dent in  Mississippi,  must  be  made 
parties  in  an  action  thereon  in  that 
state.  Stiles  v.  Inman,  55  Miss. 
472  ;  Crump  v.  Wooton,  41  Miss. 
612.  But  in  Ohio  one  or  any  or 
all  of  such  parties  may  he  sued. 
Green  v.  Burnet,  i  Handy,  285 ; 
Kautzman  v.  Weirich,  26  Ohio  St. 
332  ;  Decker  v.  Trilling,  24  Wis. 
612;  Garrison  v.  Hollins,  2  Lea,  684. 

By  statute  the  guarantor  may  be 
sued  with  other  parties  to  a  note, 
though  at  common  law  only  those 
jointly  liable  could  be  joined. 
Kautzman  v.  Weirich,  26  Ohio  St. 
333;  Tooke  V.  Taylor,  31  Tex.  4; 
Brown  v.  Champlin,  66  N.  Y.  220; 
Marshall  v.  i'eck,  i  Dana,  610; 
Stewart  v.  Glenn,  5  Wis.  16.  So 
the  maker  and  endorser  may  be 
joined.  Riddle  v.  Mandeville,  5 
Cranch,  322  ;  Hosie  v.  Judge,  2 
Mich.  496;  Mix  V.  State  Bank,  15 
Ind.  522  ;  Peretz  v.  Peretz,  l  Mart. 
(La.)  O.  S.  220;  Weston  v.  Hoge, 
7  Yerg.  350  ;  and  plaintiff  may  take 
judgment  against  the  maker,  dis- 
missing the  endorsers.  McGrath 
V.  Hoopes,  4  Cush.  498 ;  Kirk  v. 
Seawell,  2  Sm.  &  M.  571  ;  or  con- 
trary wise,  where  the  maker  was  not 
shown  to  live  in  the  state.  Pool  v. 
Hill,  44  Miss.  309;  Boush  v.  Smith, 
2  Sm.  &  M.  512. 

It  is  error  to  render  a  several 
judgment  against  one  of  the  joint 
obligors  of  a  bond,  leaving  the 
action  to  proceed  as  to  the  others, 


a  joint  action  against  all  being  the 
only  remedy  on  the  bond.  Ancher 
V.  Adams,  23  Ohio  St.  549 ;  Griffin 
V.  Simpson,  45  N.  H.  20;  Hale  v. 
Crowell,  2  Fla.  537  ;  Beale  v.  Tru- 
dean,  18  La.  Ann.  129;  Thompson 
v.  Cretien,  3  Rob.  (La.)  27  ;  Wooten 
V.  Wall,  18  Ga.  613  ;  Walker  v.  Ins. 
Co.,  31  Ala.  529. 

In  Louisiana,  one  joint  obligor 
may  be  sued  alone  and  judgment 
against  him  rendered  for  his  pro- 
portion of  the  debt.  Mitchell  v. 
D'Armond,  30  La.  Ann.  396. 
Where  one  contracts  for  himself 
and  others,  and  the  other  party 
knows  it,  he  must  sue  all  the  con- 
tractees  for  a  breach.  Stover  v. 
Metzgar,  i  Watts  &  S.  269;  Mc- 
Arthur  v.  Ladd,  5  Ohio,  518  ;  AUin 
V.  Shadburne,  i  Dana,  68.  If  two 
are  sued  jointly  the  plaintiff  must 
prove  joint  liability  on  defendant's 
part.  Platner  v.  Johnson,  3  Hill, 
477 ;  Manahan  v.  Gibbons,  19 
Johns.  Ill;  Florence  S.  M.  Co.  v. 
S.  M.  Co.,  no  Mass.  83;  Griffin  v. 
Simpson,  45  N.  H.  20;  Collins  v. 
Burlington,  54  Vt.  20 ;  Rowan  v. 
Rowan,  29  Pa.  St.  182.  But  see 
Lewis  V.  Clarkin,  18  Cal.  399,  for  the 
code  practice,  Cope,  J.,  saying  :  "  If 
A  enter  into  a  contract  on  behalf  of 
himself  and  B,  and  a  suit  is  after- 
wards brought  upon  it  against  both, 
the  injustice  of  permitting  the  former 
to  take  advantage,  for  his  own  bene- 
fit, of  the  absence  of  liability  of  the 
latter,  will  hardly  be  questioned. 


ACTIONS    ON     CONTRACT.  249 

pleading,  that  is,  by  a  plea  in  abatement,  compel  the  plain- 
tifif  to  add  Y.  and  Z.  as  co-defendants.     But  if  the  objec- 
tion that  a  contractor  is  omitted  who  is  jointly  liable  with 
the  defendant,  is  not  taken  by  a  plea  in  abatement,  proot 
at  the  trial  of  a  joint  contract  sustains  the  allega- 
tion that  the  defendant  contracted.  (/)     A  contrac-   [231] 
tor,  that  is  to  say,  may,  by  proper  pleading,  cause  the 
persons  liable  together  with  him,  to  be  made  co-defendants 
in  an  action  for  the  breach  of  their  joint  contract ;  but  he 
can    not  get  rid  of  his  liability  simply  by  proving  that 
other  persons  are  also  liable,  {k) 

A.  sued  X.,  the  commandant  of  a  volunteer  corps,  and 
a  member  of  the  committee,  for  the  price  of  uniforms  sup- 
plied to  members  of  the  corps.  No  plea  in  abatement 
was  pleaded,  and  it  was  held  that  if  the  contract  on  which 
the  action  Avas  brought  was  made  by  X.  jointly  with  the 
committee,  or  jointly  with  the  whole  corps,  he  was  liable 
even  though  sued  alone.  (/) 

A  defendant  sometimes  can  not  plead  the  non-joinder 
of  his  co-defendants,  even  in  abatement.  The  cases  where 
such  a  plea  can  not  be  pleaded  f<  )rm  the  exceptions  to  the 
general  rule. 

Exception  1. — Where  a  co-contractor  nas  become  bankrupt. 

Where  a  joint  contractor  has  become  bankrupt,  an 
action  may  be  brought  on  the  contract  against  his  co- 
conti  actors  alone.  (;«) 

Exception  2.— Where  a  claim  is  barred  against  one  or  moie 
joint  debtors,  and  not  against  others. 

ij)  I  VVms.  Sauncl.  291.  291  b  \  Whelpdale's  Case,  5  Coke,  Rep.  119^7. 
Richards  V.  Heather,  1  B.  &  Aid.  35  ;  Cross  v.  Williams,  7  II.  &  N.  675  :  3' 
L.J.  145.  Ex. 

(X-)  Contrast  tliis  with  ihc  rule  as  to  co-pl^iiUilTs,  Rule  13  ;  and  see  Chaptei 
XX.XIV. 

(0  Cross  V.  Williams,  7  II.  &  N.  675  ;  31  L.  J.  MS.  li".  ;  Rice  v.  Siuite,  1 
Smith.  L.  C,  6th  ed.,  51 1. 

(///)  3  &  4  Will.  IV.  c.  42.  s.  I. 

and  such  a  case  would  seem  to  be    and  meaning."     People  v.  Frisbie, 
not  only  within  the  letter  of  the  slat-     Id.  403. 
ute,  but  pcculiarily  within  its  spirit 


250  PARriES     TO    ACTIONS. 

Where  several  persons  are  joint  debtors,  it  may  happer 
tliat  in  consequence  cf  an  acknowledgment  or  part  pay- 
ment of  the  debt  by  one  or  more  of  them,  the  effect  of  the 
Statutes  of  Limitation  is  avoided  as  regards  one  or  more 

of  them,  and  not  as  regards  others,  {it)  Those  only 
[232J   sh(nild    be   sued   against   whom   the   claim   is   not 

barred. 

Exception  3. — Where  a  co-contractor  is  resident  out  of  the 
iurisdiotion. 

If  one  of  several  co-contractors  is  resident  out  of  the 
jurisdiction,  all  or  any  of  them  may  be  sued,  and  the  per- 
son or  persons  sued  can  not  object  to  the  non-joinder  of 
their  co-contractors. 

A  defendant  is  "  required  in  a  plea  m  abatement  to 
allege  the  non-joinder  of  all  the  co-contractors  [not  joined  J, 
and  the  plea  [is]  answered  by  showing  the  omission  of 
one,  it  being  the  defendant's  duty  to  give  the  plaintiff  a 
better  writ  against  all  those  who  are  jointly  liable  with 
him."  {p)  He  is  also  bound  (/)  to  allege  that  the  person 
whose  non-joinder  is  objected  to  is  resident  within  the 
jurisdiction,  and  to  state  his  place  of  residence.  If,  there- 
fore, one  of  the  persons  whose  non-joinder  is  objected  to 
resides  v/ithout  the  jurisdiction,  the  conditions  on  which 
a  plea  in  abatement  for  non-joinder  can  be  pleaded  can 
not  be  fulfilled,  and  the  same  result  follows  from  the 
fact  of  a  defendant's  not  knowing  the  residence  of  any  one 
.  J  his  co-contractors.  A  defendant,  in  short,  can  not 
object  to  the  non-joinder  of  his  co-contractors  "  unless  all 
the  co-contractors  are  within  the  jurisdiction,  and  their 
places  of  residence  can  be  given."  {q)  Thus,  X.,  Y.. 
and  Z.  are  co-contractors,  and  Z.  resides  beyond  the  juris- 
diction.    If  an  action  be  brought  against  X.  and  Y.,  they 

(m)  9  Geo.  IV.,  c.  14,  s.  I  ;  IQ  &  20  Vict.  c.  97,  ss.  13,  14;  Boydell  v 
Drummond,  2  Camp.  157  ;  Darby  &  Bosanquet,  Limitations,  44,  104  ;  Bulleo, 
rieadings.  3rd  ed.,  642-644. 

(p)  Joll  V.  Curzon,  4  C.  B.  249,  254,  judgment  of  WiLDE,  C.  J. 

(/)  3  C&  4  Will.  IV.,  c.  42,  s.  8.     Bulien,  Pleadings,  3rd  ed.,  471. 

(y)  Joll  V.  Curzon,  4  C.  B.  255,  per  Williams,  J. 


ACTIONS     ON    CONTRACT.  251 

can  not  object  to  the  non-joinder  of  Z.,  and  if  an  action  be 
brought  against  X.  alone,  or  Y.  alone,  the  defendant  can 
not  take  any  objection  to  the  non-joinder  of  the  other  co- 
contractors. 

Exception  4. — Where  an  action  is  brought  against  common 
carriers. 

In  an  action  against  common  carriers  either  all 
may  be  joined  as  defendants  or  one  or  more  may    [233] 
be  sued  without  joining  the  others,  (r) 

Exceptio7i  5. — Where  an  action  is  brought  against  a  firm, 
some  of  the  members  of  which  are  nominal  or  dormant 
partners. 

Where  an  action  is  brought  against  the  members  of  a 
firm,  merely  nominal  or  dormant  partners  may  be  joined 
or  not  as  defendants  at  the  plaintiff's  choice.  It  is,  how- 
ever, best  to  join  them,  {s) 

Exception  6.— Where  a  co-contractor  is  an  infant  or  a 
married  woman. 

Where  an  infant  or  married  woman  contracts  together 
with  other  contractors,  the  latter  alone  must  be  sued. 
The  infant  or  the  married  woman  must  be  considered  as 
not  having  contracted,  and  the  joinder  of  either  of  them 
will  be,  unless  amended,  a  fatal  error,  {t) 

(r)  "  Any  one  or  more  of  [several]  mail  contractors,  stage-coach  proprietors, 
fcr  common  carriers  shall  be  liable  to  be  sued  by  his,  her,  or  their  name  or 
names  only;  and  ...  no  action  or  suit  commenced  to  recover  damages  for 
loss  or  injuiy  to  any  parcel,  package,  or  person  sliall  al)ate  for  want  of  joining 
any  co-proprietor  or  co-partner,  in  such  mail,  stage-coach,  or  other  public  con- 
veyance by  land  for  hire."  II  Geo.  IV.  ;  I  Will.  IV.,  c.  68,  s.  5. 

(j)  Chapter  XIII. 

(/)  These  exceptions  differ  in  character.  In  the  first  five  cases  the  plaintiff 
may  join  the  persons  whom  he  is  not  compelled  to  join  as  defendants,  and  the 
only  harm  he  can  suffer  is,  that  in  some  of  these  cases,  f.  g.,  where  the  defend- 
ant joined  is  bankrupt,  or  is  protected  by  the  Statutes  of  Limitation,  he  will 
fail  in  his  action  as  against  such  defendant.  In  the  sixth  case  the  idaintifTmust 
not  join  the  person,  sc,  the  infant,  or  married  woman,  whom  he  can  not  l)e 
conipelled  to  join  as  a  defcnd.int  ;  for  llie   joinder   of  such    infant,  or   niairied 


252  PARTIES     TO    ACTIONS. 

Rule  50. — Covenantors  and  other  contractors 
may  be  at  once  jointly  and  severally  liable  upon  the 
same  covenant  *or  contract,  in  which  case  they  may 
be  sued  cilher  jointly  or  separately,  (u) 

[234]  Covenantors  and  other  contractors  may,  by  the 

same  covenant  or  contract,  bind  themselves  at  once 
jointly  and  severallv,  that  is,  they  may  make  themselves 
liable  to  be  sued  at  the  option  of  the  plaintiff,  either 
jointly  or  severally.  X.,  Y.,  and  Z.,  for  example,  bind 
themselves  h\  a  joint  and  several  bond  or  promissory 
note.  The  plaintiff  may  sue  either  X.,  Y.,  and  Z.  jointly, 
or  X.  separately,  Y.  separately,  &c.  {x)  On  one  joint  and 
several  covenant  or  contract  it  may  be  right  to  sue  all 
the  covenantors,  &c.,  jointly,  e.  g.,  X.,  Y.,  and  Z.,  or  to 
sue  each  of  them,  e.  g.,  X.,  or  Y.,  or  Z.  separately.  But 
it  IS  not  right  to  sue  more  than  one  without  suing  all.  {y) 

Rule  51. — The  liability  to  an  action  on  contract 
can  not  be  transferred  or  assigned. 


'&' 


A  person  bound  to  perform  a  contract  can  not,  either 
before  or  after  a  breach  of  it,  assign  to  another  his  liability 
to  be  sued  by  the  person  with  whom  the  contract  is 
made,  {a)     Thus,  an  agreement  between  retiring  partners 

woman,  will,  if  properly  pleaded,  make  the  action  fail  not  only  against  such 
person,  but  also  as  against  all  the  defendants.  Boyle  v  Webster,  17  Q.  B.  950; 
21  L.  J.  202,  Q.  B.  See  further  as  to  the  effect  of  non-joinder  and  mis-joinder, 
Chapter  XXXIV. 

(u)  Contrast  Rule  14. 

{x)  Recovery  against  X.,  it  must  be  remembered,  is  a  bar  to  an  action 
against  Y.,  &c.,  and  vice  versa. 

(y)  Though  this  holds  good  with  regard  to  what  is,  in  law,  one  joint  and 
several  covenant,  it  does  not  always  apply  to  what,  in  popular  language,  would 
be  called  one  covenant.  Suppose  X.,  Y.,  and  Z.  covenant  jointly  and  severally. 
and  also  each  two  of  them  covenant,  e.  g.,  X.  and  Y.,  Z.  and  Y.,  &c.  In  such 
a  case  X.  and  Y.  can  be  sued  without  joining  Z.  They  are  sued  not  on  the 
joint  and  sereral  covenant  of  X.,  Y.,  and  Z.,  but  upon  an  independent  cove- 
nant by  X.  and  Y. 

(a)  Kale  9. 


ACTIONS     ON     CONTRACT.  253 

and  the  remaining  members  of  the  firm,  that  the  latter 
shall  be  liable  for  all  the  debts  of  the  firm,  though  it  may 
be  binding  between  the  parties  to  the  agreement,  does  not 
relieve  the  retiring  partners  from  liability  to  the  creditors 
of  the  firm,  {b) 

Exception  i.— Where  there  is  a  change  of  credit  by  an    [235  J 
agreement  between  all  the  parties. 

The  liability  for  a  debt,  though  not  assignable  by  the 
act  of  the  debtor  alone,  may  be  transferred  by  a  binding 
agreement  between  all  the  parties,  to  the  effect  that  the 
original  debtor  shall  be  discharged,  and  a  new  debtor 
accepted  in  his  place.  Thus  X.  is  indebted  to  M.,  and 
M.  to  A.  By  agreement  of  all  the  parties,  the  debt  of  X 
to  M.  is  discharged,  and  X.  is  accepted  by  A.  as  debtoi 
in  M.'s  place,  {c)  Such  a  transfer  of  liability  frequently 
occurs  upon  a  change  in  a  firm  {d)  of  partners,  when  the 
debts  of  the  old  firm  may  be,  by  agreement  of  all  the 
three  parties  (the  creditor,  the  new  firm,  and  the  old 
firm),  transferred  to  the  new  firm,  so  as  to  render  the  new 
firm  liable  to  the  creditor  in  substitution  of  the  old  firm, 
and  to  discharge  the  latter ;  and  this  agreement  may  be 
either  express  or  arise  from  the  acts  of  the  parties,  {e) 
The  same  thing  takes  place  when,  by  agreement  between 
all  the  parties,  liability  is  transferred  from  the  original 
contractors  to  one  only  of  their  number.  (/)  It  might  be 
thought  that  in  this  case  there  was  no  consideration  {g) 
for  the  agreement,  since  the  person  to  whom  the  liability 
is  transferred  is  already  jointly  liable  to  the  creditcjr. 
But  this  is  not  so,  since  it  is  demonstrable  that  the  sole 


ib)  Chapter  XIII. 

{c)  Tatlock  V.  Harris,  3  T.  R.  174,  180  ;  Cuxon  v.  Chadley,  3  B.  &  C.  591 
Compare,  as  to  assignment  of  riijlit  of  action  by  agreement  between  the  parties 
ante  ;  Wilson  v.  Couplanfi,  5  B.  &  Aid.  228. 

(li)  For  the  nature  of  a  firm,  see  ante. 

(e)  Hart  v.  Alcx.mdcr,  2  M.  &  W.  484  ;  Rolfe  v.  Flower,  L.  R.  i.  P 
C.27. 

(/)  Lyth  V.  Ault,  7  Exch.  669. 

( g)  .See  ante 


254  PARTI/:S     TO    ACTIONS. 

security    of  X.    may    be   a   better    thing   than   the  joint 

security  of  X.  and  Y.  {h) 
[236J  An  assi^-nmcnt  of  this  kind  can  take  place  only 

by  agTcement  among  all  the  parties,  {i)  and  appar- 
ently only  in  the  case  of  debtors. 

This  exception  is  rather  apparent  than  real.  A  new 
contract  is  in  reality  formed,  part  of  the  consideration 
for  which  is  the  release  of  the  original  debtor  from 
liability  under  the  original  contract.  It  is,  therefore, 
essential  to  such  a  transference  of  such  a  liability  that  the 
original  debtor  should  be  released. 

Exception  2. — Where  there  are  covenants  between  lessor 
and  lessee  which  run  with  the  land. 

Where  such  covenants  are  made  by  a  lessor,  the 
liability  on  them  passes  to  the  assignee  of  the  reversion. 
Where  such  covenants  are  made  by  a  lessee,  the  liability 
on  them  passes  to  the  assignee  of  the  term,  {k)  Both 
lessor  and  lessee  are  liable  for  breaches  of  covenant  com- 
mitted before  assignment. 

Lessor. — On  assignment  of  the  reversion  by  the  lessor, 
he  ceases  to  be  liable  on  covenants  which  run  with  the 
land.  (/) 

Lessee. — The  original  lessee  is  not  freed  from  his  per- 
sonal liability  on  covenants  in  the  lease,  but  may  be  sued 
notwithstanding  that  he  has  assigned  the  demised  premi 
ses,   and    upon    his   death  his  liability  upon   his  expres. 

ih)  Lyth  V.  Ault,  7  Ex.  672,  judgment  of  Pollock,  C.  B.  ;  Ibid.  674,  judg- 
ment of  Alderson,  B. 

The  main  reason  why  the  sole  security  of  X.  may  be  a  better  thing  than  the 
joint  security  of  X.  and  Y.  is,  that  when  X.  is  solely  liable,  his  liability  passes 
on  his  death  to  his  representatives,  and  is  enforceable  against  them  at  law  ; 
whilst,  if  \X.  is  jointly  liable  with  V.,  X's  liability  at  law  does  not  pass  on  his 
death  to  his  representatives,  but  survives  against  Y.  only. 

{{)  Hodgson  v.  Anderson,  2  B.  &  C.  842,  855. 

(i)  See  attte. 

(I)  "When  the  lessor  grants  his  reversion,  the  privity  of  estate  is  thereby 
transferred  to  the  grantee,  and  the  privity  of  contract  in  respect  of  such  cove- 
nants as  run  with  the  land  is  also  transferred  by  force  of  the  statute  (32  Hen. 
Vni.,  c.  24)  ;"  Smith,  Landlord  and  Tenant,  293,  note  19.  Conf  Bullen, 
Pleadings,  3rd  ed.,  638  ;  Bickfe;d  v.  Parson,  "^  C.  B.  920. 


ACTIONS     ON    CONTRACT.  255 

covenants  devolves  upon  his  executor.  (;«)  In  other 
words,  the  lessee  continues  liable  to  the  lessor  on  express 
covenants  in  the  lease,  even  though  they  are  covenants 
which  run  with  the  land.  Thus,  if  a  lessee  assign  over 
his  term,  and  the  lessor  accept  the  assignee  as  his 
tenant,  the  lessee  is  liable  to  an  action  by  the  lessor,  [237] 
on  an  express  covenant  to  pay  the  rent,  {n)  The 
lessee  is  not,  however,  liable  after  an  assignment  of  his 
term  to  an  assignee  of  the  reversion,  /.  e.,  if  A.  is  the 
lessor  and  X.  the  lessee,  and  A.  assign  his  reversion  to  B., 
and  X.  assign  his  term,  to  Y.,  X.  is  under  no  liability  to 
B.,  for  X.'s  liability  to  B.  arises  only  from  privity  of 
estate,  and  is  put  an  end  to  by  assignment,  if  the  assignee 
IS  accepted  by  the  reversioner  as  tenant.  {0) 

On  the  assignment  of  the  reversion,  the  lessee  ceases 
to  be  liable  to  the  lessor  on  covenants  which  run  with 
the  land,  and  will  therefore  pass  to  the  assignee  of  the 
reversion.  (/) 

Assignee. — The  assignee  of  the  lessee  is  responsible 
only  as  long  as  he  holds  the  estate  m  the  land.  If  he  re- 
assigns, he  gets  rid  of  liability  in  respect  of  future  breaches 
of  covenant,  though  he  remains  liable  for  breaches  already 
committed  by  him.  {q)  He  is  not  liable  for  breaches 
committed  before  assignment  to  him.  (r) 


Rule  52. — The  liability  to  an  action   on  a  con- 
tract made  by  several  persons  jointly,  passes   at  the 


(w)  Leake,  Contracts,  629  ;  Thursby  v.  Plant,  I  Wins.  Saund.,  240  a  ; 
Auriol  V.  Mills,  4  T.  R.  94,  98. 

(«)  Bullen,  Pleadings,  3rd  ed.,  637.  "When  the  lessee  assigns  his  estate, 
the  privity  of  estate  is  transferred  to  the  assignee,  the  lessee  still  remaining 
liable  upon  his  privity  of  contract."    Smith,  Landlord  and  Tenant,  293,   note 

(o)  Wadham  v.  Marlow,  8  E.ast,  314,  n.  ;  i  Wms.  Saund.  240,  241  c  ;  2  Ibia. 
202,  n.  5  ;  Leake,  Contracts,  629. 

(p\  Green  v.  James,  6  M.  &  W.  656;  i  Smith.  L.  C.  6th  ed.,  61. 

(y)   Marley   v.    King,  2   C.  M.  &    R.    18  ;  T.iylor   v     Shum,  i    B.   &    P.  31 
Spencer's  Case,  I  S.  L.  C,  6th  ed.,  45,  60. 

ir)  Coward  v.  Gregory    L.  R.  2.  C.  P.  153  ;  36  L.  J.  i,  C.  P. 


-'56  PARTIES     TO    ACTIONS. 

death  of  each  to  the  survivors,  and  on  the   death  of 
the  last  to  his  representatives,  (^s) 

A  joint  contract  is  made  by  X.,  Y.,  and  Z.  The 
Habilitv  to  be  sued  upon  the  contract  passes,  on  the 
[23S]  death  of  Z.,  ♦^o  X.  and  Y. ;  on  the  subsequent  death 
of  Y.,  to  X.  ;  and  on  the  death  of  X.  (provided  the 
Uabihty  to  be  sued  survives),  {t)  to  X.'s  executor  or  admin- 
istrator. The  representatives,  e.  g.,  of  Z.  can  neither  be 
sued  upon  the  contract  themselves  nor  be  sued  jointly 
with  X.  and  Y. 

A  person's  separate  liability  on  any  contract  passes,  of 
course,  to  his  representatives.  If,  therefore,  X.,  Y.,  and 
Z.  enter  into  a  joint  and  several  contract,  and  Z.  die,  X. 
and  Y.  may  be  sued  on  their  joint  contract,  and  Z.'s  exec- 
utor may  be  sued  on  Z.'s  separate  contract.  In  other 
words,  a  joint  and  several  contract  by  X.  and  Y.  is,  in  effect, 
three  contracts,  a  joint  contract  by  X.  and  Y.,  a  separate 
contract  by  X.,  and  a  separate  contract  by  Y. 

(j)  Compare  Rule  16. 
(/)  Chapter  XVIII. 


PRINCIPAL    AND    AGENI.  ^S7 


CHAPTER    XII. 

PRINCIPAL    AND    AGENT. 

Rule  53. — A  contract  entered  into  by  a  princi- 
pal, {a)  through  an  agent,  is  in  law  made  by  the 
principal,  and  the  principal,  not  the  agent,  is  the 
person  to  be  sued  for  the  breach  of  it. 

A  principal  is  bound  by  the  acts  of  an  agent  which  he 
authorizes  before,  or  ratifies  {b)  after,  they  are  done. 

The  main  difficulty  in  fixing  one  person  with  responsi- 
bility for  a  contract  made  by  another  person  on  his  behalf, 
lies  in  establishing  that  such  other  person  has  authority 
to  contract,  i.  e.,  that  he  is  in  law  the  agent  of  the  alleged 
principal. 

The  pnnciple  which  pervades  all  cases  of  agency  is, 
that  the  principal  is  bound  by  all  acts  of  his  agent  within 
the  scope  of  the  authority  which  he  gives  him,  {c)  or 
appears  to  the  world  to  give  him. 

(a)  Rule  17.  See  n.  (<r)  ante,  as  to  the  use  of  the  letters  P.  A.  and  T. 
•hroughout  this  chapter. 

■  b)  For  ratificaiion,  see  ante. 

(f^  The  term  authority  includes  implied  as  well  as  express  authority.  Many 
.difficulties  in  the  law  of  agency  arise  from  the  ambiguous  use  of  this  word. 
Authority  is  sometimes  used  for  that  authority  only  which  a  principal  intends 
to  give  his  agent,  and  sometiines  also  for  the  authority  which  a  principal, 
though  he  may  not  intend  to  do  so,  does,  as  a  matter  of  fact,  give  his  agent  from 
the  position  in  which  he  places  him.  An  agent  may  bind  his  principal  beyond 
the  authority  which  the  principal  intends  to  give  him,  and  tlms  may,  as  between 
his  principal  and  himself,  act  in  excess  of  his  authority.  But  an  agent  can  not 
bind  his  principal,  as  regards  third  persons,  beyond  the  authority  which  he  de- 
rives,  either  directly  from  the  principal,  or  indirectly,  as  a  consequence  of  tlie 
position  in  which  he  is  placed,  or  suffered  to  stand,  by  his  principal.  The  im- 
portant point  to  remember  is  that  as  regards  third  persons  the  only  question 
is.  what  authority  has  V.  apparently  given  A.?  What  has  he  suffered  third 
parties  to  believe  respecting  A.'s  position  and  powers?  Story,  Agency,  s.  127, 
n.  (i) ;  Byles  on  IMIs,  8th  ed.,  29. 
17 


:58  PARTIES     TO    ACTION  J 

[240]  In  other  words,  the  principal  is  always  bound 

by  the  acts  of  his  agent,  up  to  the  extent  of  the 
agent's  authority,  and  is  never  bound  beyond  the  extent 
of  that  authority,  {d)  For  in  so  far  as  the  principal  em- 
powers the  agent  to  represent  him,  and  in  so  far  only,  the 
agent  is  (for  legal  purposes)  the  principal,  and  binds  the 
principal  by  his  acts.  The  difficulties  which  arise  are 
mainly  due  to  confusion  between  the  extent  to  which  the 
principal  has  actually  empowered  the  agent  to  represent 
him,  and  the  extent  to  which  he  has  intended  to  empower 
him. 

The  authority  of  an  agent  is  either  express  or  implied 

It  is  termed  express  or  actual  authority  when  the  agent 
derives  authority  expressly,  i.  e.,  by  writing  or  wore  of 
mouth,  from  the  principal. 

When  a  plaintiff  relies  solely  upon  the  express  authority 
of  an  agent  in  order  to  fix  a  principal  with  responsibility 
the  main  question  to  be  determined  must  be,  what  was 
the  actual  authority  given  ?  This  inquiry  must  itself  be 
either  a  question  of  fact  for  the  jury,  to  be  determined  by 
evidence,  if  the  authority  was  given  by  word  of  jnouth, 
or  a  question  for  the  court  as  to  the  meaning  or  con- 
struction of  a  written  document,  if  the  authority  was  given 
in  writing. 

The  authority  is  termed  implied  or  presumptive 
authority  when  the  agent  derives  authority  from  the 
principal  impliedly  (or  tacitly),  i.  e.,  from  the  acts  or  con- 
duct of  the  principal :  or  in  other  words,  from  being  placed 
"  in  a  situation  in  which,  according  to  ordinary 
[2^\]  rules  of  law,  or,  perhaps,  it  would  be  more  correct 
to  say,  according  to  the  ordinary  usages  of  man- 
kind, [the  agent]  is  understood  to  represent  and  act  for 
the  person  who  has  so  placed  him."  (/) 

id)  It  follows  that  the  authority  conferred  on  an  agent  for  any  purpose 
must  always  be  held  to  include,  unless  there  is  something  specially  to  negative 
the  inference,  all  the  necessary  and  usual  means  of  executing  it  with  effect 
(Withington  v.  Herring,  5  Bing.  442  ;  Howard  v.  Bailey,  2  H.  Bl.  618  ;  Fenn 
V.  Harrison,  3  T.  R.  757  ;  Tobin  v.  Crawford,  9  M.  &  W.  716  ;  Story,  Agency 
SI.  58-65. 

(/)  Pole  V.  Leask,  33  L.  R.  162,  Ch.  (H.  L.),  per  Lord  Cranwortm. 


PRINCIPAL    AND    AGENT.  259 

The  ground  on  which  a  principal  is  bound  by  the 
apparent  authority  of  his  agent  has  been  thus  laid  down 
with  reference  to  a  particular  case  : — 

"  Strangers  can  only  look  to  the  acts  of  the  parties, 
and  to  the  external  indicia  of  property,  and  not  to  the 
private  communications  which  may  pass  between  a  prin- 
cipal and  his  broker ;  and  if  a  person  authorize  another 
to  assume  the  apparent  right  of  disposing  of  property  in 
the  ordinary  course  of  trade,  it  must  be  presumed  that 
the  apparent  authority  is  the  real  authority.     I  can  not 
subscribe  to  the  doctrine  that  a  broker's  engagements  are 
necessarily  and  in  all  cases  lim.ited  to  his  actual  authority, 
the  reality  of  which  is  afterwards  to  be  tried  by  the  fact. 
It  is  clear  that  he  may  bind  his  principal  within  the  limits 
of  the   authority    with    which    he   has    been    apparently 
clothed  by  the  principal  in  respect  of  the  subject-matter  ; 
and  there  would  be  no  safety  in  mercantile  transactions 
if  he  could  not.     If  the  principal  sends  his  commodity  to 
a  place  where  it  is  the  ordinary  business  of  the  person  to 
whom  it  is  conhded,  to  sell,  it  must  be  intended  that  the 
commodity  was  sent  thither  for  the  purpose  of  sale.     If  the 
owner  of  a  horse  sent  it  to  a  repository  of  sale,  can  it  be 
implied  that  he  sent  it  thither  for  any  other  purpose  than 
that  of  sale  ?     Or  if  one  send  goods  to  an  auction-room, 
can  it  be  supposed  that  he  sent  them  thither  merely  for 
sate  custody?     Where  the  commodity  is  sent  in  such  a 
way  and  to  such  a  place  as  to  exhibit  an  apparent  pur- 
pose of  sale,  the  principal  will  be  bound,  and  the  purchaser 
iafe."  (g) 

Most  cases  of  agency  depend  on  the  existence  of  im- 
plied authority.     The  authority,  for  instance,  of  a 
servant  to  bind  his  master  within  the  scope  of  his    [242] 
usual  employment,  (//)  of  a  partner  to  bind  his  co- 
partners {i)  in  their  business  transactions,  of  auctioneers, 
brokers,  factors,  cashiers  in  banks,  masters  of  ships,  shop- 

{g)  Pickering;  v.  Inisk,  15  Eust.  43,  per  CURIAM. 

\h)  See  Smith.    Master  and   Servant,  2nd  ed.,  166;  Nicksoii  v.  Brohau,  10 
Mod.  109,  1 10. 

(0   Hawken  v.  Itdurnc,  8  M.  &  W.  703. 


26o  PAR  THIS     TO    ACTIONS. 

men,  kc,  and  of  nunicnnis  other  agents,  arises  m  each 
case  I'rom  the  fact  that  the  person  exercising  the  authority 
has  been  phiccd,  or  rather  has  been  allowed  to  stand,  in  a 
position  in  which,  according  to  the  ordinary  usages  of 
mankind,  he  is  understood  and  reasonably  believed  by 
'third  parties  to  have  a  right  to  bind  his  principal,  (/c) 

From  the  nature  of  implied  or  apparent  authority  flow 
the  following  results  : — 

First.  A  principal  may  be  bound  by  the  act  of  his 
agent  after  the  authority  to  act  for  him  has  been,  as 
between  him  and  the  agent,  revoked  ;  for  to  persons  whc 
do  not  know  of  the  revocation,  the  agent  may  appear  tc 
have  authority,  and  therefore  really  have  authorit}'^,  as 
regards  such  persons,  to  bind  the  principal.  (/) 

Secondly.  An  agent's  apparent  authority  can  not 
be  limited  by  the  private  orders  of  his  principal,  which 
are  unknown  to  the  third  parties  dealing  with  th*. 
agent,  {m) 

{k)  What  is  the  extent  of  an  agent's  implied  authority,  is  a  question  fioa^c 
times  of  law,  at  other  times  of  fact. 

The  powers  of  some  kinds  of  agents,  if.  _f.,  partners,  factors,  brokers,  &c.,  aif 
so  well  known  that  they  are  assumed,  as  a  matter  of  law,  to  be,  in  the  abs-;ncf 
of  proof  to  the  contrary,  of  a  certain  description. 

On  the  other  hand,  the  powers  of  the  greater  number  of  agents  are  not  set- 
tled as  a  matter  of  law.  The  authority,  for  instance,  of  a  servant  to  pledge  hi;- 
master's  credit,  of  the  manager  of  a  bank  to  endorse  bills  on  his  employer's  be- 
half, &c.,  arises — if  it  exists  at  all — solely  from  the  principal,  in  either  case 
having  held  out  the  agent  as  having  authority  to  pledge  his  credit  or  sign  bills 

(/)  V.  Harrison,  12  Mod.  346. 

(tn)  See  Story,  Agency,  s.  127,  n.  i  ;  Byles  on  liills,  29. 

A  distinction  is  often  drawn  as  to  the  effect  of  private  orders  between  thv 
position  of  a  general  and  a  particular  agent  :  a  general  agent  being  one  who  i; 
employed  to  perform  all  things  usual  in  a  particular  course  of  business  or  em 
ployment,  e.  g.,  a  factor,  broker,  &c.  ;  a  particular  agent  is  one  who  is  employee 
in  a  single  instance  (Whitehead  v.  Tuckett,  15  East,  400  ;  Story,  Agency,  127 
n.  I),  f.  g.,  2l.  servant  sent  for  the  first  time  by  his  master  to  borrow  money  of  a 
friend.  "  The  authority,"  it  has  been  said,  "of  a  general  agent  to  perform  all 
things  usual  in  the  line  of  business  in  which  he  is  employed,  can  not  be  limited 
Dy  any  private  order,  nor  known  to  the  party  dealing  with  him.  Hut  the  rule 
is  directly  the  reverse  concerning  a  particular  ngctiit,  /.  e.,  an  agent  employed 
specially  in  a  single  transaction  ;  for  it  is  the  duty  of  a  party  dealing  with  such 
a  one,  to  ascertain  the  extent  of  liis  authority,  and  if  ht  do  not  he  must  abide 
the  consequences  "  (.Smith,  Mercantile  Law,  7th  ed.,  128,  I2g).  But  the  dis- 
tinction thus  laid  down  is  not,  it  is  submitted,  maintainable,  since,  if  even  a 
particular  agent  (though  the  term  itself  is  not  a  very  happy  one,  Byles  on  Bills 
8th  ed.,  29)  is  held   out   to  other  persons  as  having  an    authority   beyond  thaf 


PRIXCIPAL     AND    AGENT.  261 

Thirdly.     Where  a  person  knows,  or  ought  to    [243] 
Know,  that  an  agent's  authority  is  limited  by  private 
instructions,   he  is  bound  by  the  limit  actually  imposed 
by  the  principal,  {n) 

The  following  cases  illustrate  the  positions  laid  down 
as  to  an  agent's  power  to  bind  his  principal  within  the 
extent  of  his  authorit)\ 

P.  expressly  authorizes  A.  to  buy  goods  for  him  from 
T.  P.  is  of  course  liable  to  be  sued  by  T.  for  the  price 
of  the  goods  thus  bought.  If  P.  gives  A.  a  greater  actual 
and  express  authority  than  A.  appears  to  possess,  i.  e., 
than  T.  is  justified  at  the  time  of  contracting  with  P., 
through  A.,  in  believing  A.  to  have,  P.  is,  it  would  seem, 
nevertheless  bound.  T.  acted  at  his  risk,  but  since  P. 
gave  A.  actual  authorit}-,  e.  g.,  to  borrow  money  for  him, 
T.  may  apparently  take  advantage  of  such  authority. 

P.  habitually  employs  his  servant,  A.,  to  buy  [244] 
goods  on  P.'s  credit.  A.  buys  goods  on  P.'s  credit, 
which  P.  has  not  authorized  him  to  buy.  P.  is  neverthe- 
less bound  to  pay  for  the  goods,  since  A.  has,  in  the  eyes 
of  third  persons,  an  implied  or  apparent  authority  to  pledge 
the  credit  of  P.  (<?)  And  it  appears  possible  that  an 
implied  authority  to  order  goods  may  arise  from  recogni- 
tion of  the  authority  of  the  agent  in  a  single  instance,  {p) 
Whether  it  arises  or  not  will  usually  be  purely  a  question 
for  the  jury. 

Where  P.  used  to  give  his  servant,  A.,  money  every 
Saturday  to  defray  the  charges  of  the  foregoing  week, 

which  liis  principal  intends  him  to  possess,  the  principal  will  he  bound  up  to 
the  extent  of  the  agent's  apparent  authority  (Story,  Agency,  s.  127).  The  true 
rule  seems  to  be,  that  an  apparent  authority  can  never  be  restrained  by  private 
ortlcrs  from  the  principal  which  are  unknown  to  the  ihird  party  ;  l>ut  that  a 
parti'.ubr  agent,  as  being  employed  in  one  instance  only,  can  rarely  have  any 
apparent  authority  whatever,  and  third  persons  therefore  must,  as  a  general 
rule,  iru-t  to  his  real  or  actual  authority.  Compare  Alexander  v.  Gibson,  2 
Camp.  555  ;  Brady  v.  Todd,  30  L.  J.  223,  C.  P.  ;  9  C.  H.,  N.  S.,  592  ;  Howard 
V.  Sheward,  L.  R.  2,  C.  V.  14S  ;  36  L.  J.  42,  C.  I'.  ;  Ward  v.  Evans,  2  Ld. 
Raym.  928. 

(;/)  Uaines  v.  Ewing,  I,.  R.  I,  Ex.  320  ;  35  L.  J.  194,  Kx. ;  Smith,  Master  & 
Servant,  2nd  ed.,  i63. 

(o)  Nickson  v.  Hrohan,  10  Mod.  109  ;  Wailand's  Case,  3  .Salk.  234. 

{f>)  Hazard  v.  Treadwcll,  I  Sir.  506. 


262  PARTIES     TO    ACTIONS. 

> 
though  the  servant  kept  tlie  monc}- ,  the  master  was  held 
chargeable,  "  for  the  master  at  his  peril  ought  to  take  care 
what  servant  he  employs,  and  it  is  more  reasonable  that 
he  should  sulTor  for  the  cheats  of  his  servant  than  stran- 
gers or  tradesmen."  {q) 

P.,  a  jeweler,  kept  a  shop  m  the  country,  living  him- 
self in  London.  The  country  shop  was  managed  by  a 
shopman,  A.,  from  whom  T.  had  been  in  the  habit  of 
receiving  orders  in  P.'s  name,  for  goods,  which  were  sent 
to  the  country  shop,  and  afterwards  paid  for  by  P.  A. 
went  to  London,  and  ordered  jewelry  there  of  T.  in  P.'s 
name,  which  he  then  earned  away  witb  him,  and  ab- 
sconded with.  T.,  it  was  held,  could  sue  P.  for  the  price 
of  the  goods  obtained  by  A.  (r) 

"  The  question  in  this  case  [and  the  same  remark 
applies  to  other  cases  of  a  similar  kind]  was  not  what  was 
the  exact  relation  between  the  defendant  and  A.,  but 
whether  the  defendant  had  so  conducted  himself  and  held 
the  other  out  as  to  lead  the  plaintiff  reasonably  to  suppose 
that  A.  was  the  defendant's  general  agent  for  the  purpose 

of  ordering  goods."  {s) 
[245]  P.,  who  was  not  a  horse-dealer,  sent  A.,  his  ser- 
vant, with  a  horse  to  Tattersall's  for  sale,  with  in- 
structions to  warrant  him  sound,  and  he  warranted  him 
free  from  vice.  P.  was  held  liable  upon  the  warranty, 
although  it  was  contended  on  his  behalf  that  the  servant 
was  but  a  special  agent,  and,  having  exceeded  his  author- 
ity, the  master  ought  not  to  be  bound,  {t)  Where,  again, 
P.  entrusted  A.,  his  servant,  to  sell  his  horse  at  a  fair,  and 
to  receive  the  price,  and  A.  warranted  him  sound,  th'j 
defendant  was  bound  by  the  warranty,  {ti)  But  though 
the  servant  of  a  horse-dealer  has  authority  to  warrant, 
and  this,  even  though,  unknown  to  the  buyer,  he  has  ex- 

(q)  VVailand's  Case,  3  Salk.  234,  per  Holt,  C.  J. 

{r)  Summers  v.  Solomon,  26  L.  j.  301.  Q.  13.  ;  7  E.  &  B.  879.  Bramwell, 
B.,  dors  not  assent  to  the  law  of  this  case.     3  II.  &  N.  794. 

(j)  Summers  v.  Solomon,  26  L.  J.  302,  Q.  B.,  judgment  of  Coleridge, 
C.J. 

(/)  Helyear  v.  Hawke,  5  Esp.  72. 

(m)  Alexander  v.  Gibson,  2  Camp.  555, 


PRINCIPAL    AND    AGENT.  263 

jyress  orders  not  to  warrant,  (j)  and  though,  apparent!}' . 
the  servant  of  a  private  person  who  is  sent  to  a  fair  or 
mart  to  sell  a  horse  may  have  authority  to  warrant,  on 
the  ground  that  the  person  entrusted  with  the  sale  of  a 
horse  in  a  fair  or  public  mart  appears  to  be  the  owner, 
and  to  have  all  the  powers  of  an  owner  in  respect  of  the 
sale,  yet  the  servant  of  a  private  owner  has  not,  as  a 
general  rule,  authority  to  warrant.  Thus  T,  applied  to 
P.,  who  was  not  a  dealer  in  horses,  to  sell  him  a  horse. 
P.  sent  his  farm-bailiff.  A.,  with  the  horse  to  T.,  and 
authorized  him  to  sell  it  for  thirty  guineas.  A.  warranted 
che  horse,  but  it  was  held  that  P.  was  not  bound  by  this 
warranty,  {z) 

These  cases  exactly  illustrate  the  principle  on  which 
t  person  who  employs  an  agent  to  act  for  him  is  bound 
iS  regards  third  persons  by  the  authorit}'  which  the  agent 
ippears  to  have,  though  as  between  the  employer  and  the 
agent  the  authority  may  be  restricted  considerably  within 
its  apparent  extent.  The  servant  of  a  horse-dealer  can 
bind  his  master  by  a  warranty  even  if  ordered  not  to  give 
it,  since  he  appears,  from  the  usual  course  of  dealing  at  a 
horse-dealer's,  to  have  such  authority  ;  and  the  same 
principle  applies  to  the  servant  of  a  private  person  [246] 
if  sent  to  sell  a  horse  at  a  public  mart.  On  the 
other  hand,  such  a  servant,  if  not  sent  to  a  fair  or  mart, 
and  if  he  has  not  habitually  acted  for  his  master,  has  no 
authority  except  that  which  is  actually  given  him,  and  as 
he  has  no  apparent  authority,  a  third  person  dealing  with 
him  must  trust  entirely  to  his  actual  authority  ;  and  what 
the  case  of  Brady  v.  Todd  established  is  that  "  in  the  case 
of  a  single  transaction  of  sale  by  the  servant  of  a  private 
individual "  there  is  no  implied  authority  to  warrant, 
"  because,  in  such  a  case,  the  buyer  has  no  right  to  pre- 
sume any  authority  in  the  servant  beyond  that  which  is 
apparent  on  the  particular  occasion."  {a) 

(  y)  Ho-.vard  v.  Shewr.nl,  L.  R.  2.  C.  P.  148  ;  36  L.  J.  42,  C.  P. 
(t)  Brady  v.  Todfl.  30  L.  J.  223.  C.  P.  ;  9  C.  B..  N.  S.,  502. 
{a)  Howard  v.  Shew.ird,  L.  R.  2,  C.  P.  151.  mdnment  of  WlLl.ES,  J.     Com 
"J^re  Fcnn  v.  Harrison,  3  T.  R.   759,  760. 


264  PARTIES     rO    ACTIONS. 

A.,  the  servant  of  P.,  had  authority  to  draw  billb  of 
exchange  in  P.*s  name,  and  afterwards  was  turned  out  of 
P.'s  service.  In  this  case  it  was  said  by  HoLT,  C.  J.,  "  if 
he  draw  a  bill  in  so  little  a  time  after,  that  the  world  can 
not  take  notice  of  his  being  out  of  service  ;  or,  if  he  were 
a  long  time  out  of  his  master's  service,  but  that  kept  so 
secret  that  the  workl  can  not  take  notice  of  it,  the  bill,  in 
these  cases,  shall  bind  the  master."  {b) 

P.  sent  his  servant,  A.,  to  T.  to  receive  £60.  A.  re- 
ceived,  not  £60,  but  a  goldsmith's  note.  It  was  held  that 
P.  was  not  bound  by  A.'s  act  in  receiving  the  note  instead 
of  the  money  ;  {c)  for  this  being  a  single  transaction,  A. 
had  no  authority  beyond  that  actually  given  him  by  his 
master,  and  persons  dealing  with  A.  were  bound  to  ascer- 
tain what  that  authority  really  was. 

But  if  T.  deals  with  A.,  the  servant  of  P.,  and  knows 
of  the  private  agreement  or  instructions  given  by  P.  to 
A.,  he  can  not  charge  P.  upon  any  contract  contrary  to 

that  agreement,  {d) 
[247]  A.,  the  manager  of  a  banking  company,  had  au- 

thority to  draw,  indorse,  and  accept  bills  on  account 
and  for  the  benefit  of  the  company.  He  indorsed  a  bill 
for  the  accommodation  of  one  T.,  "per  proc."  of  the  com- 
pany. It  was  held,  that  the  company  were  not  bound  by 
such  indorsement;  {e)  for  that  where  the  acceptance  or 
indorsement  of  a  bill  of  exchange  is  expressed  to  be  "  per 
proc,"  this  is  a  notice  to  the  indorsee  that  the  party  so 
accepting  or  indorsing  professes  to  act  under  an  authority 
from  some  principal,  and  imposes  upon  the  indorsee  the 
duty  of  ascertaining  that  the  party  so  accepting  or  indors- 
ing is  acting  within  the  terms  of  such  authority. 

Ratification. — The  rules  as  to  ratification  which  govern 


(b)  V.  Harrison,  12  Mod.  346,  per  Holt,  C.  J. 

(c)  Ward  V.  Evans,  2  Ld.  R.iym.  928. 

{d)  Howard  v.  Braithwaite,  i  Ves.  &  R.  2og  ;  Smith,  Master  and  Servant, 
2nd  ed.,  168  ;  Baines  v.  Ewing,  I..  R.  i,  Ex.  323,  judgment  of  Bramwkli,,  B. 

{e)  Alexander  v.  Mackenzie,  6  C.  B.  766.  It  is,  however,  often  a  difficult 
matter  to  decide  to  what  extent  a  third  party  is  bound  to  push  his  inquiries  in 
order  to  ascertain  that  a  person  or  agent  is  acting  within  his  authority 
^ith    V.  McGuire,  27  L.  J.  467,  469,  Ex. ;  judgment  of  Pollock,  C.  3.\. 


PRINCIPAL     AND    AGENT.  265 

a  principal's  right  to  sue  on  a  contract  apply  mutatis  mu- 
tandis to  his  liability  to  be  sued.  (/) 

Authority  of  some  kind  necessary.— K  person  is  often 
fixed  with  liability  for  a  contract,  the  making  of  which  he 
has  not  in  the   ordinary  sense  of  the  word   authorized, 
since  his  liability  may  arise  from  the  fact  that  he  has 
placed  some  person   in  a  position  in  which  such  person 
appears  to  have  authority,  or  in  other  words,  really  has 
implied  authority,  to  contract  for  him.     But  no  one  can 
ever  be  made  liable  as  principal  for  a  contract  made  on 
his  behalf  by  an  agent,  who  has  not   given   such  agent 
authority,  either- express  or   implied,  by  his   spoken  or 
written  words,  or  by  his  acts,  to  contract  for  him.      For 
^'  no  one  can  become  the  agent  of  another  person  except 
by  the  will  of  that  other  person.     His  will  may  be  mani- 
fested in  writing  or  orally,  or  simply  by  placing  another  in 
a  situation  in  which,  according  to  ordinary  rules  of  law,  or 
perhaps  it  would  be  more  correct  to  say,  according  to 
the  ordinary  usages  of  mankind,  that  other  is  understood 
to  represent  and  act  for  the   person  who   has  so 
placed  him ;  but  in  every  case  it  is  only  by  the  will   [248] 
of  the  employer  that  an  agency  can  be  created. 

"This  proposition,  however,  is  not  at  variance  with 
the  doctrine,  that  where  one  has  so  acted,  as  from  his 
conduct  to  lead  another  to  believe  that  he  has  appointed 
some  one  to  act  as  his  agent,  and  knows  that  that  other 
person  is  about  to  act  on  that  behalf,  then,  unless  he  inter- 
poses, he  will  in  general  be  estopped  from  disputing  the 
agency,  though  in  fact  no  agency  really  existed. 

"  Another  proposition  to  be  kept  constantly  in  view  is, 
that  the  burden  of  proof  is  on  the  person  dealing  with 
any  one  as  an  agent  through  whom  he  seeks  to  charge 
anotlicr  as  principal.  He  must  show  that  the  agency  did 
exist,  and  that  the  agent  had  the  authority  he  assumed  to 
exercise,  or  otherwise  that  the  principal  is  estopped  fiom 

disputing  it."  {g) 

Hence,  where  a  master  has  not,  cither  expressly  or  by 

(  f)  See  nittf. 

(g)  IVilc  V.  I-ca-k.  33  I..  J.  1^)1.  162.  Ch.,  ju.lgin.nt   of   I.or.l   CkANWORTH. 


266  PARTI  RS     TO    ACTIONS. 

implication,  authorized  his  servant  to  pledge  his  credit, 
his  servant  can  not,  b}-  doin^^  so,  render  him  liable  to  pay 
lor  goods  so  obtained.  So  where  P.'s  servant,  A.,  injured 
his  master's  carriage  by  careless  driving,  and  without  any 
orders  from  P.,  left  it  with  T.,  a  coach  maker,  to  be  re- 
paired, it  was  held  that  T.  had  no  claim  against  P.  for 
the  sum  due  for  repairs.  (//) 

Nor,  again,  can  a  person  be  made  liable  simply  because 
a  third  party  chooses  to  look  upon  or  treat  him  as  prin- 
cipal in  a  transaction  which  he  did  not  authorize.  Thus 
in  a  case  where  the  defendant  was  sued  by  the  executoi 
of  a  public-house  keeper,  for  the  price  of  meat  and  drink 
supplied  to  voters  during  an  election,  it  was  laid  down 
that  "  the  plaintiff  must  prove  an  express  contract,  or  a 
contract  implied  between  the  defendant  and  his  testatrix, 
to  pay  for  the  meat  and  drink  supplied  by  her  to  the 
voters.  The  burden  of  proof  is  on  the  plaintiff.  The  first 
question  will  be,  whether  any  contract  at  all  was  entered 
into  with  plaintiffs  testatrix.  If  she  supplied  the 
[249]  meat  and  drink  to  the  voters  on  a  mere  speculation 
that  the  candidate,  or  some  one  interested  in  the 
election,  would,  as  a  matter  df  honor,  pay  for  them,  no 
contract  was  thereby  created  with  any  one."  (?) 

Actions  against  clubs. — The  liability  of  members  of 
ordinary  clubs,  of  provisional  com.mittees,  of  volunteer 
corps,  and  of  other  voluntary  associations  which  are  net 
partnerships,  {k)  on  contracts  entered  into  on  behalf  of 
the  club  or  association,  is  not  a  question  of  law  but  of 
fact ;  (/)  and  when  an  action  is  brought  against  a  defend- 
ant on  a  contract,  made,  e.  g.,  with  the  steward  of  a  club. 
"  the  plaintiff  must  prove  that  the  defendant,  either 
himself  or  by  his  agent,  has  entered  into  that  contract. 
That  should  always  be  borne  in  mind  in  cases  of  this 
class,  for  on  most  questions  of  this  kind  the  real  ground 


{h)  Hiscox  V.  Greenwood,  4  Esp.  164. 

(i)  Thomas  v.  Edwards,  2  M.  &  W.  216,  217,  judgment  of  Parke,  B. 
(k)  Compare  Chapter  XIII. 

^*')  Compare  Flemyng  v.  Hector,  2  M.  &  \V.  179,  judgment  of  Abinger,  C. 
B.,  with  Bright  v.  Hutton,  3  H.  L.  C.  341. 


PRINCIPAL    AND    AGENT.  267 

of  liability  is  apt  to  be  lost  sight  of.  As  the  defendant 
did  not  enter  into  the  contract  personally,  it  is  quite 
clear  that  the  plaintiff  can  not  recover  against  the  defend- 
ant unless  he  shows  that  the  person  making  the  contract 
was  the  agent  of  the  defendant,  and  by  him  authorized 
to  enter  into  the  contract  on  his  behalf,  and  the  question 
is  .  ...  whether  there  [is]  .  .  .  evidence  .  .  . 
that  the  person  who  actually  ordered  [the]  goods  was  the 
authorized  agent  of  the  defendant  in  making  the  contract 
and  that  really  is  the  question  in  all  cases  of  this  kind — 
in  all  cases  of  principal  and  agent,  master  and  servant 
wherever  the  contract  is  not  made  personally  by  the  de- 
fendant." {di) 

In  the  case  of  an  ordinary  subscription  club  the  mere 
fact  of  a  person's  being  a  member  does  not  give  the 
committee  of  the  club  power  to  pledge  his  personal 
credit,  and  he  can  not,  therefore,  merely  on  the  ground  0I 
his  membership,  be  sued  for  the  price  of  goods 
supplied  to  the  steward  according  to  the  order  of  [250] 
the  committee,  {n)  It  seems  also  settled  that  the 
mdividual  members  of  the  committee  of  a  club  are  not, 
merely  as  such,  liable  for  the  price  of  goods  ordered  by  a 
member  of  the  committee,  and  supplied  by  a  tradesman 
upon  credit  for  the  purposes  of  the  club.  It  must  be 
shown  in  order  to  fix  any  individual  member  of  the  com- 
mittee with  responsibility,  that  the  contract  was  made 
with  his  concurrence,  or  perhaps  that  the  members  of  the 
committee  are  authorized  to  pledge  one  another's  credit. 
{0)  Hence,  where  two  members  of  a  club  committee 
were  sued  for  the  price  of  goods  supplied  to  the  club  on 
the  order  of  another  member  of  the  committee,  they  were 
held  not  liable. 

"  I  think,"  said  Aluerson,  B.,  "  that  as  the  members 
of  a  club  generally  are  to  be  considered  as  not  having  au- 
thorized anybody  to  deal  witii  tlicm  upon  credit,  so  here 

{m)  Flemyng  v.  Hector,  2  M.  &  W.  183    niflKmcnl  of  Pakkk,  B. 
\n)  Flemynt'  v.  Ilcclor.  2  M.  &  W.  172.     Compare  Cockcri:ll   v.   Aucompte, 
36  L.  J.  194,  C.  I'.  ;  2  C.  B..  N.  S..  440. 
{o)    lodd  V.  Kn.ly.  7  M.  &  W.  405. 


268  PAR  TIES     TO    ACTIONS. 

the  committee  were  authorized  only  to  deal  as  a  body  foi 
ready  money.  But  at  the  same  time  if  any  of  the  mem- 
bers of  the  committee  choose  to  contract,  not  for  ready 
money,  those  members  of  the  committee  who  have  so 
contracted  are  liable  upon  their  own  contract,  and  the 
members  who  have  not  concurred  in  it  are  not  liable, 
unless  that  be  the  common  purpose  for  which  the  com- 
mittee was  appointed."  ^/) 

If  there  is  a  division  of  opinion  in  the  committee,  and 
the  majority  only  give  authority  to  the  agent  to  contract, 
those  only  are,  it  seems,  liable  on  the  contract  who  voted 
lor  it.  {g)  As,  however,  the  reason  why  individual  mem- 
bers of  a  club  are  not  liable  for  the  price  of  goods  suf^- 
plied  to  the  club  is  that  the  rules  of  subscription  clubs 
ordinarily  show  that  it  is  not  the  intention  of  the  mem- 
bers that  the  dealing  of  the  club  should  be  on 
[251]  credit,  or  that  the  individual  credit  of  the  members 
should  be  pledged,  {r)  the  liability  of  individuals, 
supposing  they  have  done  nothing  to  make  themselves 
personally  liable,  depends  ultimately  upon  the  rules  of 
the  club.  If  they  show  that  goods  are  intended  to  be 
procured  upon  the  credit  of  the  members,  the  members 
will  be  liable  to  pay  for  the  goods  so  procured,  {s)  ' 

The  members  of  a  volunteer  corps,  {i)  or  of  a  pro- 
yisional  committee,  may  or  may  not,  according  to  cir- 
cumstances, be  liable  to  persons  who  supply  goods  or 
render  other  services  to  the  members  of  the  corps  or  of 
the  committee.     In  each  case  the  question  is  one  of  fact, 

(/)  Ibid.,  435,  judgment  of  Alderson,  B.     Compare  Ibid.,  8  M.  &  W.  505. 

(<7)  Ibid.,  505. 

(f)  See  Todd  v.  Emly,  7  M.  &  W.  432,  judgment  of  Abinger,  C.  B. 

{s)  Cockerell  v.   Aucompte,  26  L.  J.  194,  C.  V. ;  2  C.  B.,  N.  S.,  440. 

(/)  Cross  V.  Williams,  7  II.  &  N.  675  ;  31  L.  J.   145,  Ex, 

I.    "Committees   of   clubs    may  and  whether  it  is  assumed  by  the 

make  themselves  personally  liable  members  depends  upon  the  facts." 

on  contracts  made  by  them.    So  far  Whart.  on  Agents  and  Agency,  2 

as  concerns  the  members  of  such  461. 

clubs,  they  are,  of  course,  liable  on  The  deacons  of  an  unincorpora- 

all    contracts    to    which    they    ex-  ted  religious  society  cannot  be  held 

pressly   or   impliedly   assent.     But  personally    liable    on    a    contract 

there  must   be  s-ome   such   assent,  made  by  other  independent  agents 


PRINCIPAL     AND    AGENT.  269 

and  not  of  law  ;  and  the  matter  to  be  decided  is,  whether 
the  persons  sued  did  or  did  not  allow  the  goods,  &c.,  for 
the  price  of  which  the  action  is  brought,  to  be  supplied 
on  their  credit,  {u) 

"  In  general,  when  a  man  is  known  to  be  acting  and 
contracting  merely  as  the  agent  of  another,  who  is  also 
known  as  the  principal,  his  acts  and  contracts,  if  he 
possesses  full  authority  for  the  purpose,  will  be  deemed 
the  acts  and  contracts  of  the  principal  only,  and  will 
involve  no  personal  responsibility  on  the  part  of  the 
aeent,  unless  the  other  circumstances  of  the  case  lead  to 
the  conclusion  that  he  has  either  expressly  or  impliedly 
incurred  or  intended  to  incur  such  personal  responsi- 
bility." {x) 

The  exceptions  to  the  rule  under  consideration  are  of 
two  kinds.  They  are  either  cases  in  which  the  agent 
must  be  sued  and  the  principal  can  not  be  sued,  or  else, 
cases  in  which  cither  the  principal  or  the  agent  may  be 
sued. 

Of  the  eight   following  exceptions  the   four  first,  and 
probably  the  eighth,  are  cases  in  which  the  agent  must 
be  sued,  and  the   principal  can   not  be  sued  ;  the 
fifth,  sixth,  and  seventh  are  cases  in  which  either   [252] 
the  principal  or  the  agent  may  be  sued. 

Exception  i. — Where  an  agent  contracts  by  deed  in  his  own 
name.  (2) 

This  exception  is  merely  an  application  of  the  rule  {a) 

(«)  Bright  V.  Huttor,  3  II.  L.  C.  341. 

(z)  Story,  Agency,  s.  261.     See  Chapter  V. 

(2)  Conf.  Rule  17,  Exception  r.  The  remarks  there  made  apiily,  imuatis 
mutandis,  to  actions  against  an  agent. 

(a)  Rule  43.  Applcton  v.  Binks,  5  P^^ast,  14S  ;  Berkeley  v.  Hardy,  5  B.  &  C. 
355  ;  White  v.  Cuylcr,  6  T.  R.  176  ;  Wilks  v.  Back,  2  East,  142 .  Leake,  Con- 
tracts, 290. 

of  the  society,  though  the  deacons    sociation    in    whose    name    goods 

were  ex  officio  agents  for  the  busi-     were   taken    for   convenience,    will 

ncss  affairs  of  the  society.     Devoss     not     be     held     personally     liable 

V.Gray,  22  Ohio  St.  159.  thereon.    Stevenson  v.  Mathers,  67 

The   trustee   of  a   voluntary   as-     111.  123. 


270  PARTJJiS     IV     ACTIONS. 

that  the  person  to  be  sued  on  a  contract  by  deed  is  the 
person  with  whom  the  contract  is  expressed  by  the  deed 
to  be  made. 

Exception  2.— rWliore  <an  agent  draws,  indorses,  or  accepts  a 
bill  of  exchange  in  his  own  name. 

An  agent  is  personally  liable  "  to  third  persons  on  his 
drawing,  indorsing,  or  accepting,  unless  he  either  sign 
his  principal's  name  only,  or  expressly  state  in  writing 
his  ministerial  character,  and  that  he  signs  only  in  that 
character ;  *  unless,*  to  use  the  words  of  Lord  Ellen- 
BOROUGH,  ib)  '  he  states  upon  the  face  of  the  bill  that  he 
subscribes  it  for  another ;  unless  he  says  plainly,  I  am  the 
mere  scribe.'  Thus,  where  the  defendant,  the  agent  of  a 
hanker,  drew  the  following  bill,  '  Pay  to  the  order  of  A. 
;i^50  value  received,  which  place  to  the  account  of  the 
Durham  Bank  as  advised,'  and  subscribed  his  own  name, 
it  was  held  that  the  defendant  was  personally  answerable, 
(c)  and  he  alone,  though  the  plaintiff,  the  payed,  knew 
that  he  was  only  an  agent."  (d) ' 

Though  "  the  rule  of  law,  as  to  simple  contracts  in 
writing  other  than  bills  and  notes,  is,  that  parol  evidence 

(d)  Leadbitter  v.  Farrow,  5  M.  &  S.  345. 

(c)  Sowerby  v.  Butcher,  2  C.  &  M.  368  ;  4  Tyr.  320. 

((/)  Byles  on  Bills,  8th  ed.,  33. 

I.  Bradlee  v.  Boston  Glass  Co.,  Hale,  3  W.  Va.  495  ;  contra,  Hovey 

16    Pick.     347  ;     Rank    of    North  v.  Magill,  2  Conn.  680. 

America  v.  Hooper,  5  Gray,  567  ;  So,  of  the  titles  "  treasurer  "  or 

Pentz  V.   Stanton,   10  Wend.   276;  "director."     Moss  v.  Livingston,  4 

Anderson   v.   Shoup,    17   Ohio   St.  N.  Y.  208  ;  Rossiter  v.  Rossiter,  8 

128;  Lindo  V.  Castro,  43  Cal.  497.  Wend.  494;    Hills  v.  Bannister,  8 

A    note    signed    "A.    C,   agent,"  Cow.  31  ;  Brinley  v.  Mann,  2  Cush. 

binds  A.  C.  only,  though  his  em-  337;    Collins  v.   Ins.  Co.,   17  Ohio 

ployers    had    previously    assumed  St.  215.     But  see  De  Witt  v.  Wal- 

similarly  signed  notes.  Williams  v,  ton,  9  N.  Y.  571.     And  in  Means  v. 

Robbins,   16  Gray,  yy ;    Dubois   v.  Swormstedt,    32    Ind.    87,    sealing 

Canal  Co.,  4  Wend    285;   Wood-  with  the  seal  of  the  corporation  was 

bury  V.  Blair,  18  Iowa,  572;  Bick-  held  to  relieve  the  agent's  liability, 
ford  V.  Bank,  42  111.  238  ;   Rand  v. 


PRINCIPAL     AND    AGENT.  271 

is  admissible  to  charge  unnamed  principals,  .  .  .  but 
is  inadmissible  for  the  purpose  of  dischargmg  the  agent 
who  signs,  as  if  he  were  principal,  in  his  own  name, 
.  .  .  yet  it  is  conceived  that  the  law  as  to  nego- 
tiable instruments  is  different  in  one  respect :  to  wit,  [253] 
that  where  the  principal's  name  does  not  appear,  he 
s  not  liable  on  a  bill  or  note  as  a  party  to  the  instru- 
ment." {e) 

Exception  3. — Where  credit  is  given  exckisively  to  the  agent. 

It  is  possible  that  a  third  party  with  whom  an  agent 
contracts  as  an  agent  on  behalf  of  a  known  principal  may 
be  willing  to  give  credit  to  A.,  the  agent,  and  not  be 
willing  to  give  it  to  P.,  the  principal.  The  party  so 
dealing  with  the  agent  can  not  afterwards  sue  the  prin- 
cipal. Thus,  where  T.  sells  goods  to  A.  for  the  use  of 
P.,  who  is  known  to  be  A.'s  principal,  but  gives  credit 
exclusively  to  A.,  he  can  not,  after  having  treated  A, 
throughout  as  the  party  with  whom  he  contracts,  treat 
P.  as  the  party  liable ;  (/)  for  "  if  the  principal  be  known 
to  the  seller  at  the  time  when  he  makes  the  contract, 
and  he,  with  a  full  knowledge  of  the  principal,  chooses  to 
debit  the  agent,  he  thereby  makes  his  election,  and  can 
not  afterwards  charge  the  principal."  {g) 

Debiting  the  agent  is  one  proof  that  credit  was  given 
to  him  exclusively,  but  this  fact  may  also  appear  either 
from  the  contract  itself  or  from  other  circumstances. 
Where,  for  instance,  an  agent  in  England  buys  for  a 
foreigner  resident  abroad,  the  agent  is  generally  to  be 
considered  as  pledging  his  own  credit,  because  it  is 
highly  improbable  that  the  seller  would  have  given  credit 
to  a  foreigner.  (//)  But  the  question  to  whom  was  credit 
given  is   in    all  cases  one  of  intention,   to  be  answered 

(e)  liyles  on  Bills,  8th  ed..  34.  35.  See  rent/,  v.  Stanloii,  ro  Wend.  271 
I.eadbitterv.  Fanow,  5  M.  &  S.  345  ;  Hult  v.  Moriell.  12  Ad.  &  E.  745;  10  I 
J.  52,  Q.  n.     Compare  Lindiis  v.  Uradwell.  5  C.  U.  5S3  ;  I?  L.  J.  121.  C.  P. 

(/)  Addison  v.  Gandasef|ui,  2  Smith,  L.  C,  6th  ed.,  313. 

\g)  'J'homson  v.  Davenport,  Ihid.,  337,  per  I.nri.KDAI.K,  J. 

<h)  Mahon.y  v.  Kekule,  23  \..  J.  54,  C.  P.  ;    14  C.  li.  3()0. 


2/2  PARTIES     TO    ACTIONS. 

either  from  the  contract  or,  where  that  is  doubtful,  from 
the  facts.  (/)  ' 

[254]         Exct-ption  4. — Where  an  agent  contracts  for  persons 
incapable  of  contracting. 

If  an  agent  contracts  for  persons  incapable  of  con- 
tracting, the  agent  is  ordinarily  held  personally  liable. 
Thus,  where  certain  persons,  on  behalf  "  of  a  parish  in 
England,  made  an  agreement  with  the  plaintiff  to  pave 
the  streets  of  the  parish,  and  to  pay  him  therefor,  it  was 
held  that  the  persons  so  contracting  were  personally 
liable,  for  the  parishioners,  as  such,  could  not  be  sued 
therefor,  {k)  So  where  an  overseer  of  the  poor  m  England 
contracted  with  tradesmen  upon  account  of  the  poor,  and 
upon  his  own  credit,  it  was  held,  that,  as  soon  as  he 
received  so  much  of  the  poor's  money,  it  became  his  own 
debt.  (/)     So  where  the  business  of  a  voluntary  eleemosy- 

(t)  Thomson  v.  Davenport,  2  Smith,  L.  C,  6th  ed.,  327. 

{k)  Meiiel  v.  Wymandsold,  Hardres,  R.  205. 

(/)  Anon.,  12  Mod.  R.  559.  See  Lamljert  v.  Knott,  6  Dovvl.  &  Ryl.  127. 
Cullen  V.  Duke  of  Queenslniry,  i  Bro.  Ch.  R.  loi  ;  S.  C,  i  Bro.  Pail.  Cases,  by 
Tomlins,  396  ;  Lancaster  v.  P'ricker,  i  Bing.  R.  201.  See  Hoskyns  v.  Slayton, 
Cas.  Temp.  Hard.  376. 

I.  When  the  agent  draws  credit  Evans  v.  Dunbar,  117  Mass.  546 

to  himself  instead  of  avowing  his  Hovey    v.    Magill,    2    Conn.   680 

agency,  he  becomes  liable  to  the  Reed  v.    Latham,   40  Conn.   452 

third    party     dealing    upon     such  Hall   v.  Bradbury,   40   Conn.    32 

credit.    Newhall  v.  Dunlap.  14  Me.  Pentz  v.   Stanton,   10  Wend.   271 

180;  Goodwin  v.  Bowden,  54  Me.  Spencer  v.   Field,    10   Wend.   87 

424;  Savage  v.  Rix,  9  N.  H.  262;  Waring  v.  Mason,  18  Wend.  425 

Despatch    Line  v.  Bellamy,   12  N.  Taintor  v.  Prendergast,  3  Hill,  72 

H    229;  Simons  v.  Heard,  23  Pick.  Fellows  v.  Northrup,  39  N.  Y.  119 

120;    Ballou   v.   Talbot,   16   Mass.  Meyer    v.    Barker,   6    Binn.    228 

461  ;   Taber    v.    Cannon,   8   Mete.  Campbell  v.  Baker,  2  Watts,  83 

460;    Central   Bridge  v.   Butler,  2  Harper  v.  Hampton,  i   Harr.  &  J. 

Gray,   130;    Haverhill  Ins.  Co.  v.  622;   York  Co.  Bank   v.  Stein,  24 

Newhall,   i  Allen,   130;  Fullam  v.  Md,    447;    Deming    v.    Bullitt,    i 

West   Brookfield,  9  Allen,   i  ;  Gay  Blackf.  241  ;   McClellan  v.  Parker, 

V.  Bates,  99  Mass.  263;  Wilder  v.  27  Mo.  162;   McCurdy  v.  Rogers, 

Cowles,  100  Mass.  487  ;   Southard  21  Wis.  197  ;   Saveland  v.  Green, 

V.     Sturtevant,     109     Mass.     390;  36  Wis.  612. 


PRINCIPAL    AND    AGENT.  273 

nary  society  was  conducted  by  a  committee,  it  was  held, 
that  the)"  were  personally  responsible  to  a  baker  who 
supplied  the  establishment  with  bread  at  their  request 
{m)  for  it  might  be  fairly  presumed  that  he  looked  to  the 
committee  for  payment,  and  not  to  the  subscribers  at 
large."  {ri)  But  the  presumption  is  one  which  can  be  re- 
butted ;  for  the  person  dealing  with  the  agent  may  have 
known  that  he  had  no  authority  to  bind  his  principals 
{e.g.,  the  members  of  the  society),  and  yet  have  been  con- 
tent to  deal  with  the  agent,  not  upon  his  personal  credit, 
but  upon  the  chance  of  being  paid  by  his  employees ; 
and  in  this  case  the  agent  is  clearly  not  liable.  {6) 

Exception  5. — Where  the  contract  is  made  by  the  agent 
himself,  /.  e.,  where  the  agent  is  treated  as  the  actual  party  by 
whom  the  contract  is  made,  or  in  other  words,  where  the 
agent,  though  acting  as  such,  incurs  a  personal  responsibility. 

"  A  person  who  is  acting  for  another,  and  known  [255] 
by  him  with  whom  he  deals  to  be  so  acting,  may  and 
will  be  personally  liable  if  he  contracts  as  a  principal, 
and  that  whether  he  contracts  by  word  of  mouth  or  in 
writing.  The  difference  is,  that,  if  the  contract  is  by  word 
of  mouth,  it  is  not  possible  to  say  from  the  agent  using  the 
words  '  I  '  and  '  me,'  whereas  if  the  contract  is  in  writing, 
signed  in  his  own  name,  and  speaking  of  himself  as  con- 
tracting, the  natural  meaning  of  the  words  is,  that  he 
binds  himself  personally,  and,  accordingly,  he  is  taken  to 

do   so It   is   well    settled   that   an    agent   is 

responsible,  though  known  by  the  other  party  to  be  an 
agent,  if,  by  the  terms  of  the  contract,  he  makes  himself 
the  contracting  party."  (/) 

(;;;)  Burls  v.  Smith,  7  Bing.  K.  705.  See  Doubleday  v.  Muskett,  7  Hintj.  R 
1 10. 

(«)  Story,  Agency,  s.  285. 

(o)  IbiH.,  s.  287. 

(p)  Williamson  v.  Barton,  31  L.  R.  174,  Ex.,  judgment  of  Bramwell,  B. 
See  Story.  Agency,  s.  269;  Higgins  v.  Senior,  8  M.  &  W.  834  ;  11  L.  J.  199. 
Ex. ;  Parker  v.  Winlo,  7  E.  &  B.  942  ;  27  L.  J.  49.  Q-  B. ;  Lcnnard  v.  Robin- 
son, 5  E.  &  B.  125  ;  24  L.  J.  275,  Q.  B.  Compare  P^islier  v.  Marsh,  34  L.  J., 
177  Q.  B. ;  6  B  &  S.  411.  If.  however,  credit  is  given  to  the  agent  exclusively, 
the  case  falls  within  Exception  3. 
18 


274  PARTIES     TO    ACTIONS. 

If  the  contract  is  by  word  oi  mouth,  it  is  merely  a 
question  of  evidence  whether  the  agent  intended  to  make 
himself  a  part}'  to  the  contract.  If  the  contract  i*?  m 
writing,  the  question  of  an  agent's  liability  depends  upon 
points  of  interpretation.  Thus  a  charter-party  is  made 
between  A.,  ''agent  for  P.,"  and  T.,  and  signed  by  A., 
without  an}^  restriction.     A.  is  personally  liable,  {q) 

A  contract  is  entered  into  by  A.,  who  appears  in  the 
body  of  it  to  be  the  contracting  party,  but  who  oigns  it 
"  by  authority  of,  and  as  agent  for.  P.,  a  merchant  abroad." 
A.  is  personally  liable  ;  (r)  since  "  many  cases  have  decided 
that  it  is  not  sufficient  to  free  the  parties  to  a  contract  from 
personal  liability,  that  they  state  in  the  contract  that  they 
enter  into  it  as  agents  for  another  person;  buL  that  the 
whole  instrument   is    to   be   looked    at   in    order   to   sec 

whether  the  contract  is  made  by  them  as  principals 
[256]  or  as  agents."  {s)     So,  again,  a  fortiori,  where  A. 

contracts  in  his  own  name  without  mentioning  his 
principal,  though  the  fact  of  his  being  an  agent  is  known 
to  the  other  party,  A.  is  personally  liable.  (/)     But  where 

a  charter-party  was  signed  "  for  P.  of  L -,  A.  as  agent," 

A.  was  held  not  personally  liable,  on  the  ground  that  it 
woLdd  require  extremely  strong  words  in  the  body  of  the 
contract  to  control  the  effect  of  that  form  of  signature,  (?/) 
and  where  A.  signed  "  for  P.  and  Co.,"  A.  was  held  not 
liable,  {x)  The  fact,  however,  that  an  agent  is  clearly 
liable  on  a  written  contract,  does  not  free  his  principal 
from  liability ;  for,  though  a  person  who  appears  to  be 
liable  on  the  face  of  a  written  contract  can  not  give  evi- 
dence to  show  that  he  is  not  liable  (since  to  do  this  would 

iq)  Parker  v.  Winlo,  7  E.  &  B.  942  ;  27  L.  J.  49,  Q.  15. 

{r)  Lennard  v.  Robinson,  5  E.  &  B.  125  ;  24  L.  J.,  275,  Q.  B. 

{s)  Lennard  v.  Robinson,  24  L.  J.,  277,  Q.  B.,  judgment  of  Coleridge.  J. 

(t)  Higgins  V.  Senior,  8  M.  &  W.  S34;  11  L.  J.  199,  Ex.  ;  but  conf.  Wake 
V.  Harrop,  31  L.  J.,  451  Ex. ;  I  H.  &  C.  202  (Ex.  Ch.).  Price  v.  Walker,  L.  R. 
5,  Ex.  173. 

(m)  Deslandes  v.  Gregory,  2  E.  &  E.  610  ;  30  L.  J.  36,  Q.  B.  (Ex.  Ch.)  ;  but 
conf.  Reid  v.  Dreaper,  3c  L.  J.  268,  Ex.  ;  6  H.  &  N.  S13  ;  Cocke  v.  Wilson, 
26  L.  J.  15,  C.  P.  ;  I  C.  B.,  N.  S.,  153.  Wilson  v.  Zulueta  19  L.  J.,  49 
Q.  B. 

[x)  Redpath  v.  Wigg,  L.  R.  i,  Ex.  335  ;Ex.  Ch.). 


PRIXCIPAL    AXD    AGENT.  275 

be  to  contradict  the  written  contract),  there  is  notl  ing  to 
prevent  the  production  of  evidence  that  a  person  who  is 
not  liable  on  the  face  of  a  contract  is  in  reality  chargeable 
under  it.  {y) 

Exception  6. — Where  the  agent  is  the  only  known  or  osten- 
sible principal,  or  where  a  contract  (not  under  seal)  has  been 
made  by  an  agent  in  hir,  own  name  for  an  undisclosed  {z) 
principal,  {a) 

A.  contracts  with  T.  in  reality  as  an  agent  for  P.,  but 
it  is  not  known  or  stated  to  T.  that  A.  is  contracting  as 
an  agent.     A.  contracts  with  T.,  and  states  himself 
to  be  an  agent,  but  does  not  give  T.  the  name  of  his   [257] 
principal,  P.     In  either  case  T.  may,  on  discovering 
that  P.  is  principal,  sue  either  P.  or  A. 

Exception  7. — Where  money  received  by  an  agent  for  his 
principal  has  been  paid  under  a  mistake  of  fact,  or  obtained 
by  means  of  a  tort. 

Payment  to  a  clerk,  servant,  or  other  agent,  being 
payment  to  his  employer  or  principal,  (/)  the  person  who 
pays  money  under  circumstances  which  give  him  a  right 
to  recover  it  back  may  always  sue  the  principal,  and,  as 
a  general  rule,  can  not  sue  the  agent,  {g)  But  a  person 
who  has  a  right  to  recover  money  from  a  principal  may 
also  sue  the  agent  to  whom  the  money  is  actually  paid  in 
ihe  following  cases. 

If  T.  pays  money  to  A.  for  P.  in  consequence  of  a  mis- 

iy)  Garrett  v.  Hanaiey,  4  B.  &  C.  664  ;  Bateman  v.  Phillips  16  East,  356 
(^x  Ch.) ;  Patterson  v.  Gandasequi,  15  East,  62  ;  2  Smith,  L.  C,  6th  ed..  313  ; 
Sowerby  v.  Butcher.  2  C.  &  M.  368  ;  4  Tyr.  320  ;  I.efeuvre  v.  Lloyd,  5  Taunt 
749  ;  I  Marsh,  318  ;  Higgins  v.  Senior,  3  M.  &  W.  844,  845. 

{z)  For  meaning  of  "  undisclosird  "  principal,  see  ante. 

(a)  See  Sims  v.  Bond,  5  B.  &  Ad.  389  ;  2  Smith,  L.  C,  6ih  ed..  355  ;  Pat 
terson  v.  Gandasequi,  Ibid.,  313  ;  Thomson  v.  Davenport,  Iliid.,  327. 

(/)  Paley,  Agency,  388;  Smith,  Master  and  Servant,  2nd  ed.,  227;  Duke 
of  Norfolk  V.  Worthy,  I  Camp.  337. 

(g)  .Sadler  v.  I- vans,  4  Burr.  1984;  Eddcn  v.  Rc.id.  3  Camp.  33 »  ;  conf 
Stephens  v.  Bidcock.  3  B.  &  \d.  354  ;  Bamford  v.  Shutlleworlh,  M  A.  Ac  E 
036 


2-6  PARTIES     TO    ACTIONS, 

take  of  fact,  T.  may,  on  giving  notice  to  A.,  and  provided 
A.  has  not  paid  the  moiicv  over,  or  done  what  is  equivalent 
to  paving  it  over,  bring  an  action  against  A.  for  its  recov- 
er}-.  For  "  it  is  clear  law  that  an  agent  who  receives 
money  for  his  principal  is  liable  as  a  principal  as  long  as 
he  stands  in  his  original  situation,  and  until  there  has 
been  a  change  of  circumstances  by  his  having  paid  over 
the  money  to  his  principal,  or  done  something  equivalent 
to  it."  (//)  Where  A.  sold  to  T.  a  bar  of  silver  received 
from  P.,  his  principal  at  Gibraltar,  and,  owing  to  a  mis 
calculation  as  to  the  number  of  ounces  in  the  bar,  T. 
paid  A.  more  than  the  price  agreed  upon,  it  was  held 
that  T.  could  sue  A.  for  money  received,  it  being  ad- 
mitted that  no  money  had  been  paid  by  the  defendant  to 
his  principal,  nor  any  other  thing  done  to  create  a  change 

of  circumstances.  (/.)  So  where  money  is  paid  by 
[258]    mistake  to  an  agent,  and  placed  by  him  to  the  account 

of  his  principal,  but  not  paid  over,  an  action  will  lie 
against  the  agent  at  the  suit  of  the  person  paying  the 
money  ;  for  the  mere  passing  such  money  in  account  with- 
out any  fresh  bills  accepted  or  further  sums  advanced  for 
the  principal  in  consequence  of  it,  is  not  equivalent  to 
the  payment  of  it  over,  {k) 

"  The  principle,  in  short,  of  law  is  clear,  that  if  money 
be  mispaid  to  an  agent  for  the  use  of  his  principal,  and 
the  agent  has  paid  it  over,  he  is  not  liable  to  an  action 
by  the  person  who  mispaid  it,  because  it  is  just  that  one 
man  should  not  be  a  loser  by  the  mistake  of  another : 
and  the  person  who  made  the  mistake  is  not  without 
redress,  but  has  his  remedy  over  against  the  principal. 
On  the  other  hand,  it  is  just,  that,  as  the  agent  ought  not 
to  lose,  so  he  should  not  be  a  gainer  by  the  mistake ; 
and,  therefore,  if  after  the  payment  so  made  to  him,  and 
before  he  has  paid  the  money  over  to  his  principal,  the 
person  corrects  the  mistake,  the  agent  can  not  afterwards 
pay  it  over  to  his  principal  without  making  himself  liable 

(h)  Cox  V.  Prenlice,  2  M.  &  S,  344,  per  Ellenbokough,  C.  J. 

(0  Ibid. 

(>fe)  BuUer  v.  Harrison,  Cowp.  565 


PRINCIPAL    AND    AGENT.  277 

to  the  real  owner  ^or  the  amount."  (/)  It  is,  however, 
essential  in  order  to  fix  the  agent  with  liabiHty,  that  he 
should  not  have  paid  the  money  over,  or  done  anything 
equivalent  to  paying  it  over  before  he  receives  notice 
not  to  pay  it.  {vi)  But  if  the  agent  knows  that  the 
person  paying  the  money  intends  to  dispute  his  right  to 
detain  it,  and  if  such  person  has  given  him  notice  thereof, 
and  the  agent  in  consequence  hastens  the  payment  over 
to  his  principal,  his  doing  so  is  a  species  of  fraudulent  act 
for  which  he  may  be  liable  to  the  person  from  whom  the 
money  is  received.  («) 

The  doctrine  that  an  agent  is  not  liable  to  be  sued  for 
money  received  to  the  use  of  his  principal,  does  not  apply 
to  cases  where  the  agent  gets  the  money  into  his 
hands  by  means  of  a  tortious  act,  whether  the  [259] 
wrongful  act  was  committed  by  the  orders  of  his 
employer  or  not.  For  all  persons  concerned  in  a  tort  are . 
principals,  {o)  and  as  the  party  injured  might  bring  an 
action  against  the  servant  for  damages  sustained  in  con- 
sequence of  his  wrongful  act,  so  he  may  waive  his  righ< 
to  proceed  in  that  form  of  action,  and  sue  for  the  money 
received  by  the  wrong-doer.  And  in  such  cases  it  is  no 
defense  that  the  agent  has  paid  over  the  money  received 
to  his  principal.  Where  A.,  by  the  direction  of  P.,  his 
father,  who  claimed  to  be  executor  of  T.'s  deceased  wife, 
took  from  a  box  of  T.'s,  money,  which  A.  asserted  to 
belong  to  his  father,  and  paid  it  over  to  him,  it  was  held, 
that  A.,  though  he  acted  as  an  agent,  was  liable  to  T.  in 
an  action  for  money  received,  {p)  since  "  the  defendant 
was  a  wrong-doer  in  taking  the  money,  and  would  have 
been  liable  to  the  plaintiff  in  trespass.  The  j^laintilT, 
however,  waives  the  tort,  and  sues  the  defendant  for 
money  had  and  received ;  and  the  defendant  can  not 
relieve  himself  from  liability  by  paying  over  the  money 

(/)  \\>'u\.,  per  MANsriKl.D,  C.  J. 

(tn)  Holland   v.  liassel'.,  I  B.  &  S.  424  .  30  L.  J.  308.  Q.  H. ;  4  B.  &   S.  14; 
•J2  L.  J.,  297,  Q.  B.  (Ex.  Ch.). 

(n)  Ibid..  32  I..  J..  298,  Q.  n.  (Kx.  Ch.),  judgment,  of  Erle,  C.  J. 

(o)  Sec  Chapter  XXV. 

ip)  Tubman  v.  Hopkins,  4  M.  &  G.  389. 


278  PARTIES     TO    ACTIONS. 

to  another,  as  he  might  have  done  had  the  or  ginal  tak- 
ing been  lawful.  This  circumstance  distinguishes  the 
.  .  .  case  fiohi  Stephens  v.  Badcock,  {q)  for  there  the 
defendant  received  the  money  as  agent  for  a  party  who 
was  entitled  to  receive  it,  whereas  here  the  receipt  was 
altogether  wrongful,  and  it  must  be  taken  with  all  its 
consequences."  (r) 

So  where  an  action  was  brought  against  the  governor 
of  a  prison  for  an  extortionate  charge  exacted  from  a 
prisoner,  it  was  held  no  defense  that  he  had  accounted  to 
the  proper  authorities  for  all  sums  received  on  account  of 
the  jail.  {/) 

Exception  8. — Where  an  agent  has  signed  certain  contracts 
on  behalf  of  a  limited  company  without  using  the  word 
"  limited." 

[260]  The  Companies  Act,  1862,  contams  stringent  pro- 
visions to  compel  limited  companies  (/)  and  their  offi- 
cers to  use  the  word  "  limited,"  as  part  of  the  name  of  the 
company  in  matters  relating  to  its  business,  {u)  and  persons 
signing  or  authorizing  the  signature  on  behalf  of  a  limited 
company  of  any  bill  of  exchange,  promissor}'  note,  check, 
or  order  for  money  or  goods,  in  which  the  word  "  limited  " 
is  not  used  as  directed,  are  themselves  liable  for  the 
amount  unless  the  same  is  duly  paid  by  the  company,  [v) 

The  right  to  sue  either  the  principal  or  the  agent  at 
the  option  of  the  plaintiff  is  subject  to  certain  limitations 
intended  to  secure  justice  to  all  the  parties  concerned. 

I  St.  The  right  to  sue  either  the  principal  or  the  agent, 
is  a  right  of  choice. 

"The  very  expression,  that  .  .  .  the  contractee 
has  an  election  to  sue  agent  or  principal,  supposes  that  he 


{q)  3  B.  &  Ad.  354. 

(;')  Tugman  v.  Hopkins,  4  M.  &  G.  400-402,  judgment  of  Tinual,  C.  J. 
(s)  Miller  v.  Aris,  3  Esp.  231. 
[t)  See  Chapter  XIV.,  post, 
(u)  Companies  Act,  1862,  ss.  41,  42. 

(v)  Ibid.,  s.  42  ;  Penrose  v.  Martyr,  E.    B.  &  E.  499 ;  2S  L.  J.  28,  Q.  B.  ;  I 
Lindley,  Paitnersb'p,  2nd  ed..  389. 


PRINCIPAL    AND    AGENT.  279 

can  only  sue  one  of  them, — that  is  to  say,  to  judgment. 
For  it  may  be  that  an  action  brought  against  one  might 
be  discontinued,  and  fresh  proceedings  be  well  taken 
against  the  other."  (w) 

Hence  where  an  action  has  been  brought  against  the 
master  of  a  ship  and  prosecuted  to  judgment,  a  separate 
action  can  not  be  maintained  for  the  same  cause  of  action 
against  the  owner,  {x) 

2ndly.  The  right  to  sue  either  the  principal  or  the 
agent  may  be  barred  by  circumstances,  which  show  that 
its  exercise  would  work  injustice  to  the  party  sued. 

The  chief,  though  not,  perhaps,  the  only  case  in  which 
the  creditor  loses  his  right  to  sue  the  principal,  is  where 
the  creditor  has  so  dealt  with  the  agent  as  to  place 
the  principal  in  a  worse  situation  than  he  ought  to  [261] 
be  in.  (7)  "  Although  the  person  who  has  dealt 
with  an  agent  believing  him  to  be  a  principal,  may  elect 
to  treat  the  after-discovered  principal  as  having  conti-acted 
with  him ;  {z)  still,  if  the  principal,  following  the  ordinary 
course  of  business,  has,  after  his  liability  to  the  contrac- 
tor is  complete,  altered  the  state  of  his  accounts  with  the 
agent,  this  rierht  of  the  contractor  exists  subject  to  the 
state  of  those  ctccounts."  {ii)  Hence  it  has  been  laid 
dcnvn,  that  "if  the  principal  has  paid  the  agent,  or  if  the 
state  of  the  accounts  between  the  agent  and  the  principal 
would  make  it  unjust  that  the  seller  should  call  upon  the 
principal,  the  fact  of  payment  or  such  a  state  of  accounts 
would  be  an  answer  to  an  action  brought  by  the  seller, 
where  he  had  looked  to  the  responsibility  of  the  agent ;  " 
ib)  and  the  law  on  the  subject  has  thus  been  somewhat 
more  precisely  summed  up  by  Lord  Ellenborougii, 
C.  J.  :— "  A  oerson  selling  goods  is  not  confined  to  tlie 
credit  of  a  broker  who  buys  them,  but  may  resort  to  the 
principal  on  whose  account  they  are  bought.     .     .     It  he 

{'iu)  I'ricstlcy  v.  Fcrnie,  34  L.  J.  I75.  Kx.,  judgment  of  Hkamwkli,,  B. 

(x)  Ibi<l.,  1-2,  Ex. ;  3  H.  &  C.  97?- 

{y)  .See  ilcald  v.  Kenworihy,  10  Exch.  745,  juilgmci.t  of  Tollock,  C.  B. 

(2)  Sec  ante. 

(a)  'llioiiison  V.  Davcn])ort,  2  Smith,  L.  C.   Gtlicil.,  347,  notes. 

(^b)   Ibid.,  335,  judi^inent  of  I5avi,i:V,  J 


280  PARTIES     TO    ACTIONS 

lets  the  day  of  payment  go  by,  be  may  lead  the  principal 
to  suppose  that  he  trusts  solely  to  the  broker;  and  if 
in  this  case  the  price  of  the  goods  has  been  paid  to  the 
broker,  on  account  of  the  deception,  the  principal  shall  be 
discharged."  {c) 

In  order  to  deprive  the  creditor  of  his  right  of  acti(;n 
against  the  principal,  it  is  necessary  that  something  in  the 
course  of  proceeding  on  the  creditor's  own  part  should 
have  placed  the  principal  in  a  worse  position  than  he 
otherwise  would  have  been  in  ;  and  hence  mere  payment 
by  the  principal  to  the  agent  of  the  money  to  be  paid  to 
the  creditor  does  not,  in  spite  of  the  expressions  used  in 

Thomson  v.  Davenport,  of  itself  discharge  the 
[262J    principal  from  liability.     The  law  is  thus  laid  down 

by  Parke,  B.  : — "  The  plea  simply  states  that  after 
the  contract  was  entered  into  between  the  plaintiffs  and  a 
third  party,  the  agent  of  the  de%nddnt,  under  circumstan- 
ces which  rendered  the  defendant  liable  upon  it,  the  latter 
paid  the  agent.  I  am  of  opinion  that  this  is  no  defense  to 
the  action.  There  are  no  doubt  cases  and  dicta  which, 
unless  they  be  understood  with  some  qualification,  afford 
ground  for  the  position  taken  by  the  counsel  for  the  de- 
fendant "  {sc,  that  the  mere  fact  of  payment  to  the  agent 
discharged  the  principal).  But  "  there  is  no  case  where 
the  plaintiff  has  been  precluded  from  recovering,  unless 
he  has  in  some  way  contributed  either  to  deceive  the 
defendant  or  to  induce  him  to  alter  his  position."  {d)  It 
is,  in  short,  necessary  in  order  to  exempt  the  principal 
from  being  sued,  that  something  must  occur  to  make  it 
unjust  to  call  upon  him  for  payment:  as,  for  instance, 
where  the  seller  tells  the  principal  that  he  v/ill  look  to  the 
agent  for  payment,  and  the  principal  in  consequence  pays 
the  agent,  {e)  The  same  principle  applies  to  the  right  to 
sue  the  agent.  Thus,  as  has  been  already  pointed  out,  a 
person  who  under  a  mistake  pays  money  to  an  agent  for 
a  principal,  can  not  recover  it  back  from  the  former  after 

(c)  Kymer  V.   Suwercropp,  I  Camp.   1 12,  judgmajit  of  Ei.LENiiOROUGH    ('.  J. 
(</)  Heald  v.  Kenworlhy,  10  Exch.  745,  746,  judgment  of  Parke,  B. 
{e)  Ibid.,  744,  per  Parke,  B. 


PRINCIPAL    AND    AGENT.  281 

he  has  paid  it  over  to  his  employer,  since  it  would  be 
unjust  then  to  sue  the  agent. 


Rule  54. — An  agent  who,  without  having  au- 
thority, enters  into  a  contract  on  behalf  of  a  principal, 
can  not  himself  be  sued  on  the  contract,  but  is 
otherwise  liable/ 

Where  a  person,  though  without  authority,  enters  into 
a  contract  professedly  as  agent  for  another  person, 
he  can  not  be  sued  for  a  breach  of  the  contract.  "  I  [263] 
think,"  says  Lord  Campbell,  C.  J.,  "  that  where  it 
clearly  and  expressly  appears  that  a  person  really  acting 
as  agent  fairly  contracts  as  such  agent  in  the  name  ol  his 
principal,  and  professes  to  make  that  principal  liable,  the 
agent  is  not  liable  to  be  sued  upon  the  contract.  He  may 
be  sued  so  as  to  make  him  liable  in  damages  for  the  loss 
sustained  by  the  person  with  whom  he  has  entered  into 
the  contract.  Ewt  to  say  that  he  is  personally  liable  upon 
a  contract  which  he  really  makes  as  agent,  would  be  to 
make  a  contract  instead  of  construing  that  which  the  par- 
ties themselves  have  made."  (/) 

(/)  Lewis  V.  Nicholson,  21  L.  J.  316,  Q.  B,  judgment  of  Campbell,  C.J.  -, 
Jenkins  v.  Hutchinson,  13  Q.  B.  744  ;  18  L.  J.  274,  Q.  B.  ;  Thomson  v.  Daven- 
port, 2  Smith,  L.  C,  6th  ed.,  340-346 ;  Godwin  v.   Francis,  L.  R.  5  C.  P.  295. 

I.  He  may  be  sued  on  implied  that  capacity  undertakes  to  make 

warranty  of  agency  for   damages,  a  contract  binding  upon  his  princi- 

Johnson  v.  Smith,  21    Conn.   627  ;  pal,  is  an  action  on  the  case  for  de- 

Baltzen  v.  Nicolay,  53  N.  Y.  467  ;  ceit  and  not  an  action  of  assumpsit 

Munnikuyson    v.   Dorsett,  2    Harr.  upon  the  contract.      *      *      *      If 

&  G.  374;  Campbell   v.   Hillman,  one  without  authority  undertakes 

5  B  M on.  515  ;  or  for  fraud  ;  Hart-  to  make  a  contract  for  another,  the 

lett  V.Tucker,  104  Mass. 336;  White  contract  is  necessarily  void.  It  is  not 

V.  Madison,  26  N.  Y.  1 17  ;  M'Curdy  the  contract  of  the  principal,  for  the 

V.  Rogers,  21  Wis.  197;  Lander  v.  pretended  agent  had  no   power  to 

Castro.   43   Cal.   497.     Walton,  J.,  bind  him.     It  is  not  the  contract  of 

says,  in   Noyes  v.   Loring,  55   Me.  the  agent,  for  in  making  it  he  did  not 

408:     "The    remedy   against    one  attempt  to  bind  himself.   How. then, 

who   fraudulently   represents   him-  can  such  a  contract  be  the   basis 

self  as  the  agent  of  another,  and  in  of  a  su^t  ?   Very  clearly  it  cannot. 


782  PARTIES     TO    ACTIONS. 

Thoii2:h  the  agent  can  not  be  sued  upon  the  contract 
he  may  be  sued  so  as  make  him  Hable  in  damages. 

If  he  has  fraudulently  represented  himself  to  have 
authority,  he  is  liable  to  an  action  for  false  representa- 
tion, [g)  and  whether  his  representation  be  fi-audulent  or 
not,  he  can  be  sued  for  a  breach  of  the  implied  contract 
that  he  had  authority  to  contract ;  {h)  for  "  a  person  who 
induces  another  to  contract  with  him  as  the  agent  of  a 
third  party  by  an  unqualified  assertion  of  his  being 
authorized  to  act  as  such  agent,  is  answerable  to  the 
person  who  so  contracts,  for  any  damages  sustained  by 
reason  of  the  assertion  of  authority  being  untrue.  This 
is  not  the  case  of  a  bare  mis-statement  by  a  person  not 
bound  by  any  duty  to  give  information.  The  fact  that 
the  professed  agent  honestly  thinks  that  he  has  authority 
affects  the  moral  character  of  his  act ;  but  his  moral 
innocence,  so  far  as  the  person  whom  he  has  induced  to 
contract  is  concerned,  in  no  way  aids  such  person  or 
alleviates  the  inconvenience  and  damage  which  he 
[264"]  sustains.  The  obligation  arising  in  such  a  case  is 
well  expressed  by  saying  that  a  person,  professing 
to  contract  as  agent  for  another,  impliedly,  if  not  ex- 
pressly, undertakes  to  or  promises  the  person  who  enters 
into  such  contract,  upon  the  faith  of  the  professed  agent 
being  duly  authorized,  that  the  authority  which  he  pro- 
fesses to  have  does  in  point  of  fact  exist."  {i) 

A.  fraudulently  represents  to  T.  that  he  has  authority 
to  contract  for  P.  with  intent  to  deceive.  A.,  when  he 
has  no  authority  from  P.  and  knows  it,  nevertheless 
makes  a  contract  with  T.  as  having  such  authority.  A., 
though  not  having,  in  fact,  any  authority  to  contract  as 
agent  of  P.  with  T.,  yet  does  so  under  the  bona  fide 
belief  that  he  has  authority,  e.  g..  from  having  received 
a   forged   power   of  attorney,      T.  can,  in  the  first  and 

{g)  Thomson  v.  Davenport,  2  Smith.  L.  C,  6th  ed.,  346. 

(k)  Ibid.  ;  CoUen  v.  Wright.  7  E.  &  B.  301  ;  26  L.  J.  147-  Q-  ^>-  ;  8  E.  &  B. 
647  ;  27  L.  J.  215,  Q.  B.  (Ex.  Ch.);  Randell  v.  Trimen,  18  C.  B.  786 ;  25  L.  J. 
307.  C.  P. ;  Spedding  v.  Nevell,  L.  R.  4,  C.  P.  212  ;  Godwin  v.  Francis,  L.  R. 
5,  C.  P.  295. 

it)  Collen  V.  Wright,  8  E.  &  B.  657,  658,  judgment  of  \ViLLES,  J. 


PRINCIPAL    AND    AGENT.  283 

second  of  these  cases,  sue  A.  for  false  representation,  and 
in  all  of  them  for  a  breach  of  the  implied  contract,  that 
he  has  authority  to  contract  as  agent  of  P.  {k) 

It  would  appear  that  if  one  person  without  authority 
accepts  bills  on  behalf  of  himself  and  others,  he  is  Hable 
in  an  action  on  the  bill. 

Hence  where  A.,  without  authority,  accepted  a  bill  for 
a  company  or  partnership  of  which  he  was  a  member,  in 
the  following-  terms:  "A.  accepted  per  proc.  P.  and  C. 
Mining  Company  ;  "  it  was  held  that  he  was  personally 
liable.  (/) 

Exception. — Where  the  authority  of  an  agent  has  without 
his  knowledge  expired  at  the  time  of  his  malcing  the  con- 
tracts. 

If  an  agent  has  received  authority  to  contract  for  his 
principal,  and  the  authority  has  expired  by  the  death  of 
the  principal  without  the  knowledge  of  the  agent,  and  the 
agent,  though  his  authority  has  expired,  believes  himself 
to  have,  and  contracts  as  having,  authority,  he  is  not  liable 
to  an  action. 

A  wife,  during  the  absence  of  her  husband  [265] 
abroad,  contracted  as  his  agent  for  goods  to  be  sup- 
plied for  her ;  it  was  held  that  she  was  not  liable  for  the 
price  of  goods  supplied  after  his  death,  and  before  informa- 
tion of  it  reached  her.  {111)  "  All  the  cases  in  which  the 
agent  has  been  held  personally  responsible  will  be  found 
to  arrange  themselves  under  one  or  other  of  these  three 
classes.  ...  It  will  be  found  that  he  has  either  been 
guilty  of  some  fraud,  has  made  some  statement  which  he 
knew  to  be  false,  or  has  stated  as  true  what  he  did  not 
know  to  be  true,  omitting  at  the  same  time  to  give  such 

{k)  Thomson  v.  Davenport,  2  Smith,  L.  C.  Olh  e<l.,  327. 

(/)  Nicholls  V.  Diamond,  23  L.  J.  I,  Ex.  ;  9  ICxch.  154  ;  Owen  v.  Van  Uster, 
20  L.  J.  61,  C.  P.;  10  C.  H.  3i3- 

(///)  Smout  V.  libcry,  lo  M.  &  W.  i  ;  12  L.  J.  357,  Kx.  Compare  Blades  v 
Free,  9  B.  &  C.  167.     Sec  Chapter  .XVI. 


284  PARllHS     TO    ACTIONS. 

information  to  the  other  contracting  party  as  would 
enable  him,  equally  with  himself,  to  judge  of  the  authority 
under  which  he  proposed  to  act.  .  .  .  Here  the  agent 
had,  in  fact,  full  authority  to  contract,  and  did  contract  in 
the  name  of  the  principal.  .  .  .  The  continuance  of 
the  life  of  the  principal  .  .  .  was  a  fact  equally  within 
the  knowledge  of  both  contracting  parties.  If  then  the 
true  principle  derivable  from  the  cases  is  that  there  must 
be  some  wrong  or  omission  of  right  on  the  part  of  the 
agent  in  order  to  make  him  personally  liable  on  a  contract 
made  in  the  name  of  his  principal,  it  will  follow  that  the 
agent  is  not  responsible  in  such  a  case  as  the  present." 
{71)  Though  the  agent  in  this  case  was  a  married  woman, 
the  judgment  "  is  founded  on  general  principles  applicable 
to  all  agents."  {0) 

in)  Smout  V.  Ilbery,  lo  M.  &  W.  lo.  II,  per  Curiam 
io)  Ibid. 


PARTNERS    AND     COMPANIES.  285 


CHAPTER    XIII. 

PARTNERS    AND.  UNINCORPORATED   COMPANIES. 

Rule  55. — A  firm  or  unincorporated  company 
can  not  be  sued  in  its  name  as  a  firm  or  as  a  com- 
pany, but  must  be  sued  in  the  nanies  of  the  indi- 
vidual partners  or  members  composing  the  firm  or 
company,  {a) 

Rule  56. — All  persons  who  are  partners  in  a  firm, 
or  members  of  an  unincorporated  company,  at  the 
time  when  a  contract  is  made  by  or  on  behalf  of  the 
firm  or  company,  should  be  joined  in  an  action  fo" 
the  breach  of  it.  (b) 

Where  partners  contract  jointly,  either  in  their  indi- 
vidual names,  X.,  Y.,  and  Z.,  or  in  the  name  of  the  firm, 
M.  and  Co.,  they  must  all  be  sued  in  an  action  on  the 
contract.  A  contract,  further,  made  by  one  partner  on 
behalf  of  the  firm  is  generally  to  be  held  a  contract  by 
the  firm  ;  for  each  partner  is,  within  the  scope  of  the 
partnership  business,  an  agent  for  his  co-partners,  and 
has  authority  for  and  on  behalf  of  all  of  them  to 
make  such  contracts  as  are  necessary,  proper,  and  [267] 
customary  in  the  course  of  their  business,  {c) 

"  The  liability  of  one  partner  for  the  acts  of  his  co- 
partner is,  in  truth,  the  liability  of  a  principal  for  the  acts 

(a)  For  an  explanation  of  this  rule,  see  anU.  What  is  there  said  as  to  ac- 
tions by,  applies,  mutatis  mutandis,  to  actions  against,  partners. 

{h)  See  Rules  13  and  21. 

(c)  Harrison  v.  Jackson,  7  T.  K.  207,  210;  Leake,  Contracts,  277;  Cox  v. 
Hickman.  3  H.  L.  C.  268,  279;  30  L.  J.  125,  C.  P. 


286  PARTI  l-S     TO    ACTIONS. 

of  his  assent.  When  two  or  more  persons  are  engaged  as 
partncis  in  an  ordinary  trade,  each  of  them  has  an  im- 
plied authority  from  the  others  to  bind  all  by  contracts 
entered  into  according  to  the  usual  course  of  business  in 
that  trade.  Every  partner  in  trade  is,  for  the  ordinary 
purposes  of  the  trade,  the  agent  of  his  co-partners,  and  all 
are,  therefore,  liable  for  the  ordinary  trade  contracts  of 
the  others.  Partners  may  stipulate  among  themselves 
that  some  one  of  them  only  shall  enter  into  particular  con- 
tracts, or  into  any  contracts,  or  that,  as  to  certain  of  their 
contracts,  none  shall  be  liable  except  those  by  whom  they 
are  actually  made  ;  but  with  such  private  arrangements 
third  persons  dealing  with  the  firm  without  notice  have 
no  concern.  The  public  have  a  right  to  assume  that  every 
partner  has  authority  from  his  co-partner  to  bind  the 
whole  firm  in  contracts  made  according  to  the  ordinary 
usages  of  trade."  {d)  The  partnership,  therefore,  X.,  Y., 
and  Z.,  are  bound  by,  and  should  be  sued  on,  any  contract 
made  by  X.  on  their  behalf,  provided  it  be  one  within  the 

scope  of  his  authority  as  a  partner,  {e) 
[268]         The  rule  is  modified  by  the  existence  of  dormant 

and  nominal  partners. 
A  dormant  partner  (/)  always  may  be  joined  in  an 
action  against  the  firm.  (/)     Thus,  if  X.  and  Y.  are  osten- 

{d)  Cox  V.  Hickman,  S  II.  L.  C.  304,  judgment  of  Lord  Cranworth.  Com- 
;iare  the  judgment  of  the  Couit  in  Hawken  v.  Bourre,  8  M.  &  W.  703,  710. 

{e)  In  determining  whether  a  given  transaction  is  within  the  limit  of  X's  au 
Ihority,  the  lollowing  distinction  should  be  borne  in  mind  : — 

Certain  contracts  are  (jrima  facie  within  the  authority  of  the  member  of  an 
ordinary  firm.  Thus  a  partner  may,  as  such,  in  general,  draw,  accept,  or  in- 
dcrse  bills  of  exchange  in  the  name  of  the  firm  (Harrison  v.  Jackson,  7  T.  R. 
207,  210 ;  Norton  v.  Seymour,  3  C.  B.  792  ;  Carter  v.  Whalley,  i  B.  &  Ad.  Ii  ; 
Stephens  v.  Reynolds,  5  H.  &N.  513;  29  L.  J.  278,  Ex.). 

There  are  other  contracts  which  a  partner,  as  such,  has  no  power  to  enter 
into  on  Ijehalf  of  the  firm.  Thus  a  partner  can  not  execute  a  deed  without  an 
authority  under  seal  to  do  so  (Harrison  v.  Jackson,  7  T.  R.  207),  and  the  power 
of  a  partner  to  bind  his  firm  depends  to  a  great  extent  upon  the  nature  of  the 
partnership  business.  As  a  partner,  in  short,  occupies  the  position  of  an  agent, 
the  extent  of  his  auihority  to  l)ind  his  principal  (the  firm),  will  be  found  to  be 
partly  a  question  of  law,  and  partly  a  question  of  fact.  He  has,  speaking  gen- 
erally, that  authority  which  a  person  dealing  with  the  firm  would,  under  the 
whole  circumstances  of  the  case,  be  justified  in  supposing  him  to  possess. 

(/)  See  ante. 


PARTNERS    AND     COMPAXfES.  287 

sible  partners,  and  Z.  a  dormant  partner,  an  action  may 
always  be  brought  against  X.,  Y.,  and  Z.,  even  by  a  per- 
son who,  at  the  time  he  entered  into  the  contract  sued 
upon,  did  not  know  of  Z.'s  existence  ;  for  persons  who 
deal  with  the  firm  are  "  entitled  to  hold  all  who  are  part- 
ners bound  by  the  prima  facie  authority  conferred  on  the 
manager,  and  that  equally,  whether  the  persons  sought  to 
be  charged  were  persons  to  whom  the  creditors  gave 
credit,  or  dormant  partners,  of  whose  existence  they  were 
unaware.  I  think  the  justice  of  this  rule,  as  apphcable 
to  dormant  partners,  very  questionable  ;  but  I  do  not  think 
it  open  to  question  that  it  is  the  rule  of  law."  ( g) 

When,  therefore,  it  is  intended  to  sue  a  person  as  a 
dormant  partner,  what  is  to  be  considered  is  not  whether 
credit  was  given  to  him,  but  whether,  as  a  matter  of  fact, 
he  was  a  partner  at  the  time  the  contract  was  entered 
into.  His  liability  depends,  not  upon  his  having  shared 
in  the  profits,  but  upon  the  business  having  been  carried 
on  on  his  behalf,  /.  e.,  upon  his  having  stood  in  the 
position  as  principal  towards  the  other  partners. 

A  dormant  partner  never  need  be  joined  where  the 
other  partner  or  partners  have  led  the  plaintiff  to  suppose 
that  he  or  they  alone  constitute  the  firm,  {h)  If, 
for  example,  a  person  carries  on  a  business  in  his  [269] 
own  name,  e.  g.,  as  X.,  a  plaintiff  can  not  be  com- 
pelled in  an  action  against  him  to  join  a  dormant  partner, 
Y.  (z.)  At  the  same  time,  the  person  who  deals  with  a 
firm,  e.  g.,  X.  and  Co.,  can  not  treat  X.  (supposing  the  firm 
in  reality  to  consist  of  X.  and  Y.)  as  solely  liable  simply 
because  the  creditor  supposed  that  X.  was  the  only  person 
in  the  firm. 

"  If  a  party  contracting  with  another  delivers  an  in- 
voice made  out  to  a  firm,  and  nothing  is  said  as  to  the 
parties  composing  the  firm,  and  he  afterwards  brings  an 
action  against  the  individual,  he  takes  his  chance  of  that 

(ff)  Cox  V.  Hickman,  8  H.  L.  C.  278.  opinion  of  I'.i.MKHrKN,  J.  ;  Ihid.,  312 
313,  jiuigment  of  Lord  WKNSi.EVt)AI.E. 

(h)  I  Lindlcy,  I'arlner.sliip.  2nd  ed.,  485,  486  ;  Bonlield  v.  Smith,  12  M.  & 
W.  405  ;  13  L.  J.  105,  Ex.  ;  I)c  Mantort  v.  Saunders,  i  H.  &  Ad.  398. 

(i)  Mulictt  V.  lluok.  I  M.  &  M.  88. 


2S8  PARTI  I-:S     TO    ACTIONS. 

individual  being  the  cmlv  person  in  the  firm.  If,  indeed, 
the  party  represents  himself  as  the  only  person  com- 
posing the  firm,  an  action  may  be  brought  against  him 
alone;  or  if,  on  being  asked  who  are  his  partners,  he 
refuses  to  give  any  informaticMi,  that  may  be  evidence  for 
the  jury,  whether  he  did  not  hold  himself  out  as  solely 
liable.  But  a  party  can  not  succeed  against  one  of  sev- 
eral partners  because  he  supposes  him  to  be  alone  liable. 
It  ought  to  be  shown,  in  point  of  fact,  either  that  the 
defendant  is  solely  liable  or  that  he  represented  himself 
to  be  so.  In  the  present  case,  as  the  plaintiff  knew  that 
(X.)  and  Co.  constituted  a  firm,  it  was  his  duty  to  be  sat- 
isfied as  to  the  parties  of  whom  the  firm  consisted."  {k) 

A  nominal  partner  (/)  always  may  be  joined  in  an  action 
against  the  firm  brought  by  a  person  to  whom  he  holdc 
himself  out,  or,  rather,  suffers  himself  to  appear,  as  a 
partner.  A  person,  therefore,  who  holds  himself  out  to 
the  world,  i.  e.,  to  every  one  dealing  with  the  firm,  as  a 

partner,  can  always  be  sued. 
[270]  But  where  the  nominal  partner  has  never  been 

knovvn  as  such  to  a  particular  person,  it  would 
rather  appear  {m)  that  such  person  can  not  join  him  in  an 
action  against  the  firm,  for  "  the  rule  which  imposes  on  a 
nominal  partner  the  responsibilities  of  a  real  one,  is  framed 
in  order  to  prevent  those  persons  from  being  defrauded 
or  deceived  who  may  deal  with  the  firm.  Bvit  where  the 
person  dealing  with  the  firm  has  never  heard  of  him  as  a 
component  part  of  it,  that  reason  no  longer  applies."  {n) 
A    plaintiff''s   right    to    sue    a  nomijial    partner    depends 

{k)  Bonfield  v.  Smith,  13  L.  J.  106,  Ex.,  judgment  of  Lord  Aeinger, 
C.  B. 

It  is  otherwise  if  the  ostensible  partners  held  themselves  out  as  being  the 
•nly  members  of  the  firm.  When  they  have  done  this  they  can  not  insist  upon 
the  plaintiff  joining  the  dormant  partners  as  co-defendants  (De  Mantort  v, 
Saunders,  i  B.  &  Ad.  398). 

(/)  See  ante. 

(;«)  See  con'ra  Young  v.  Axtell,  cited  Waugh  v.  Csrver,  i  .Smith,  L.  C,  6th 
ed.,  846,  where  it  is  stated  by  Lord  Mansfield,  "  that  as  the  defendant  had 
suffered  her  name  to  be  used  in  the  business,  and  held  herself  out  as  a  partner, 
she  was  certainly  liable,  though  the  plaintiff  did  not  at  her  time  of  dealing  know 
that  she  was  a  partner  or  that  her  name  was  used  "  (Ibid.,  847). 

(«)  Waugh  V.  Carver,  i  Smith,  L.  C,  6th  ed..  860. 


PARTNERS    AND     COMPANIES.  289 

upon  its  being  proved  "  that  the  defendant  hela  nimself 
out,  not  to  the  world,  for  that  is  a  loose  expression,  but 
to  the  plaintiff  himself,  or  under  such  circumstances  of 
publicity  as  to  satisfy  a  jury  that  the  plaintiff  knew  of  it, 
and  believed  him  to  be  a  partner."  {o)  The  rule  as  to  a 
nominal  partner's  liability  to  be  sued  may,  if  this  view 
of  his  position  be  correct,  be  thus  summed  up.  He  is 
simply  an  apparent  partner,  and  may  be  sued  by  any 
person  to  whom  he  appears  to  be  a  partner,  but  can  not 
be  sued  by  any  person  to  whom  he  has  not  appeared  to 
be  a  partner. 

A  partner,  or  member  of  an  unincorporated  company, 
can  not  be  sued  on  a  contract  made  before  he  joined  the 
firm  or  company,  since  he  was  not  one  of  the  persons  by 
whom  the  contract  was  made.  If,  indeed,  Z.  joins  the 
firm  of  X.  and  Y.,  it  may  sometimes  be  the  result  of 
transactions  between  the  firm  and  its  creditors  that  the 
latter  are  to  look  for  payment  of  their  debts,  not  to  the 
old  firm,  X.  and  Y.,  by  whom  they  were  contracted,  but 
to  the  new  firm,  X.,  Y.,  and  Z.  But  in  this  case, 
Z.  is,  in  effect,  liable,  not  on  the  original  contract  [271] 
made  before  he  joined  the  firm,  but  on  a  new  con- 
tract made  by  him  and  his  partners. 

A  retired  partner,  or  member  of  an  unincorporated 
company,  may  be  sued  on  any  contract  made  whilst  he 
was  a  partner  of  the  firm,  or  member  of  the  company. 
If,  that  is  to  say,  a  contract  is  made  by  the  firm  of  X.,  Y.. 
and  Z.,  Z.,  though  he  retires  from  the  firm,  remains  liable 
on  his  contract,  {q) 

Exception. — One  partner  must  or  may  be  sued  alone  on 
contracts  made  by  him  on  behalf  of  the  firm,  in  the  same  cases 

{o)  Dickinson  v.  Valpy,  lO  B.  &  C.  140,  per  Parke,  J.  ;  and  compare  Shott 
V.  Stieatfield.  i  M.  &  Rob.  9;  Alderson  v.  Popes,  I  Camp.  404. 

(q)  A  partner's  liability  may  continue  to  exist  after  he  has  actually  retired 
from  the  firm,  if  notice  has  not  been  given  of  his  retirement.  (Newsome  v 
Coles,  3  Camp.  621.)  Publication  in  the  Gazette  is  a  sulTicient  notice  to  all 
who  have  not  had  dealings  with  the  partnership  before  the  change,  but  partners 
remain  liable  for  the  acts  of  one  another  to  all  persons  wlio  have  had  dealings 
with  the  firm,  until  such  persons  receive  particular  notice  of  the  dissolution  of 
partnersliip.     (Karrer  v.  Defllime,  i  C.  &  K.  5S0.) 


290  PARTIES,     TO    A  (.2  IONS. 

in  which  an  agent  must  or  may  be  sued  on  contract',  ^  aJc  by 
him  on  behalf  of  his  principal.  (/) 

EacK  partner  is  an  agent  of  his  co-partners  within  the 
scope  of  the  partnership  business.  Hence  he  must  be 
sued  alone  on  contracts  made  by  the  firm  (his  principals) 
in  cases  in  which  an  action  must  be  brought  against  an 
agent,  e.  g.,  when  he  has  contracted  by  deed  in  his  own 
name  ;  {s)  and  he  may  be  sued  alone  in  the  cases  in  which 
an  agent  may  be  sued,  instead  of  his  principal,  e.  g.,  when 
he  has  contracted  (not  under  deed)  on  behalf  of  the  firm, 
but  in  his  own  name.  (/) ' 

Set-off. — Debts  due  to  one  partner,  X.,  can  not  be  set- 
off" against  debts  due  from  the  firm,  X.,  Y.,  and  Z.  ; 
[272]   nor  can  debts  due  to  the  firm,  X.,  Y.,  and  Z.,  be 
set-off  against  debts  due  from  one  partner,  X.  iii) 

This  principle  is  subject  to  the  following  exception  : 

Where  one  partner  is  or  has  become  {e.  g.,  by  the  death 
of  his  co-partners)  the  only  person  who  can  be  sued  for  a 
debt  due  from  the  firm,  he  may  set-off  a  debt  due  to  him 
self  individually ;  {v)  and  it  would  seem  that  he  can,  in 

(r)  See  ante. 

{s)  Rule  53,  Exception  i.  See,  furlher,  Eastwood  v.  Bain,  5  H.  &  N.  738  ; 
28  L.  J.  74,  Ex.  ;  Bottomley  v.  Nuttall,  5  C.  B.,  N.  S.,  122  ;  2S  L.  J.  no,  C. 
P.  ;  Byles  on  Bills,  8th  ed.,  34 ;  i  Lindley,  Partnership,  2nd  ed.,  244.  In  one 
exceptional  case  partners  may  he  liable  on  a  bill  to  which  they  are  not  parties. 
This  is  where  a  bill  is  drawn  upon  a  firm,  and  accepted  by  one  partner  in  his 
own  name  only. 

(/)  Rule  53,  Exception  5. 

(m)  See  anU. 

{v)  Fletcher  v.  Dyche,  2  T.  R.  52. 

I.  If  the  credit  was  given  to  one  Tomlinson,  i  Day,  148;  Snead  v. 

partner  alone,  he  alone  is  responsi-  Barranger,  i  Stew.  134. 

ble.     Lafon   v.   Chinn,  6   B.  Mon.  It  is  a  question  for  the  jury  as  to 

305  ;    Sylvester   v.  Smith,  9   Mass.  whom  the  credit  was  given.     Web- 

121  ;  Holmes  v.  Burton,  9  Vt.  252  ;  ster  v.  Stearns,  44  N.  H.  498.    And 

Ketchum   v.   Durkee,   i    Hoff.   Ch.  where  the  credit  is  given,  each  of 

528;   Watt  V.   Kirby,  15    111.  200;  the  partners,  before  they  form  the 

Meyer  v.  Larkin,  3  Cal.  403  ;  John-  partnership,  the  goods  bought  being 

ston  V.  Warden,  3  Watts,  loi.    But  put  in  to  make  up  the  stock  of  the 

such    credit    must    be     knowingly  firm,  the  firm  is  not  liable  on  the 

and  willingly  given.     Reynolds  v.  joint   notes   of  the   partners   given 

Cleaveland,  4  Cow.  282  ;  Mead  v.  therefor.  Wall  v.  Fife,  37  Fa.  St.  394, 


PARTNERS    AXD     COMPANIES.  291 

the  like  case,  in  an  action  for  a  debt  due  from  him  indi- 
vidually, set-oflf  a  debt  due  to  him  as  representing  the 
firm,  e.  g.,  as  sui"V'iving  partner,  {x) 

An  action  for  a  debt  due  from  a  firm  is  sometimes,  in 
order  to  avoid  a  set-off,  brought  against  one  of  several 
partners  only.  His  remedy  is  to  plead  the  non-joinder 
of  his  co-partners  in  abatement.  But  if  X.,  tne  partner 
sued,  is  for  anv  reason  unable  to  plead  the  non-joinder  of 
his  co-partners,  Y.  and  Z.,  he  can  not,  it  would  seem,  take 
any  advantage  in  the  way  of  set-off  of  debts  due  from  the 
plaintiff  to  the  firm,  X.,  Y.,  and  Z.  (7) 


Rule  57. — Actions  on  contracts  made  by  a  firm; 

1.  Can  not  on  the  bankruptcy  of  the  firm  be 
brought  either  against  the  trustee  or  (as  a  general 
rule)  against  the  individual  partners. 

2.  Must  on  the  bankruptcy  of  one  or  more  part- 
ners be  brought  against  the  solvent  partner  or  part- 
ners. {£) 

There  is  no  remedy  by  action  against  a  trustee 
in  respect  of  the  bankrupt  whom  he  represents,  {a)  [273J 
The  remedv  is  by  proof  against  the  bankrupt's 
estate,  or  by  an  action  against  him  if  his  order  of  discharge 
is  no  bar  to  tlie  claim.  When,  therefore,  it  is  desired  to 
recover  a  debt  or  damages  for  breach  of  contract,  due 
from  a  firm  (jf  which  all  the  partners  are  bankrupt,  an 
action  is  not  the  remedy,  unless  the  partners  have  not  ob- 
tained their  discharge,  or  unless  the  claim  is  one  which 
can  not  be  proved  in  bankruptcy,  {p) 

(x)  Sec  Slipper  v.  Sidstone,  5  T.  R.  493  ;  Golding  v.  Vaughan,  2  Chit. 
436. 

(_)')  Stackwood  v.  Dunn,  3  Q.  B.  823  ;  i  Lindley,  Partnership,  2nd  ed., 
520. 

(«)  I  Lindley,  I'artncr.-.liip,  2Md  ed.,  4<)4.  Contrast  with  tliJs,  Rule  23.  Sec 
Chapter  XVI L 

(a)  I  Lindley,  Partnership,  2nd  ed.,  495. 

(b)  See  Cl)ai)ter  XVFI.,  as  to  the  claims  which  are  proveable,  and  which 
herefore  are  barred  liy  bankniptcy,  and  Bankruptuy  Act,  1869,  s.  48. 


29;  PARTIES     TO    ACTIONS. 

If,  however,  one  or  more  only  of  the  partners  are 
bankrupt  the  solvent  partner  may  be  sued,  {c)  and  they 
may  and  should  be  sued  alone  if  the  bankrupt  partners 
are  discharged  from  the  claim,  and  lointly  with  them  if 
they  are  not.  {d)  Thus,  if  the  firm  of  X.,  Y  ,  and  Z.  are 
bankrupt,  no  action  can  be  brought  against  their  trustee, 
nor,  if  X.,  Y.,  and  Z.  have  obtained  their  order  of  dis- 
charge, and  the  claim  be  one  that  is  proveable,  {e)  can 
an}'  action  be  brought  against  them.  But  if  X.,  Y.,  and  Z. 
have  not  obtained  their  discharge,  or  if  the  claim  be  not 
one  to  which  bankruptcy  is  a  bar,  they  are  liable  to  be 
sued. 

Suppose,  again,  that  X.  be  made  a  bankrupt,  Y.  and  Z. 
are  still  liable  to  be  sued.  If  X.  is  discharged  from  the 
debt,  Y.  and  Z.  must  be  sued  without  him,  and  if  he  is 
not  they  must  be  sued  jointly  with  him.  (/) 

Unincorporated  companies — Winding  up. — The  general 
rule  can  not  be  applied  without  modification  to  unincor- 
porated companies.  The  affairs  of  such  companies,  when 
insolvent,  are  generally  settled  by  the   company   being 

wound  up.  (^) 
[274]  On  a  petition  for  winding-up  being  presented, 

actions  against  such  companies  can  be  stayed,  and 
after  the  order  for  winding  up,  can  not  be  brought  with- 
out leave  of  the  court.  {Ji) 

When  an  unincorporated  company  is  registered,  those 
persons  only  become  members  of  the  incorporated  com- 
pany who  are  members  of  the  unincorporated  company  at 
the  time  of  registration  ;  consequently  the  liabilities  of 
persons  who  were  once  members  of  the  unincorporated 
company,  but  had  ceased  to  be  so  before  the  time  of  its 
registration,  are  unaffected  by  the   incorporation  of  the 

(f)  Hawkins  v.  Ramsbottom,  6  Taunt.  178. 

{d)  Uovill  V.  Wood,  2  M.  &  S.  23  ;  Moravia  v.  Glasse,  Ibid.,  444  ;  3  &  4 
Will.  IV.  c  42,  s.  9  ;  Bankruptcy  Act   i86q,  s.  50. 

{e)  Chapter  XVII. ./^j/. 

(/)  I  Lindley,  Partnership,  2nd  ed.,  694 ;  Bullen,  Pleadings,  3rd  ed.,  505 
506,  n.  (a).     See  as  to  set-cff  in  bankruptcy,  ante. 

{g)  See  I  Lindley,  Partnership,  2nd  ed.,  166  ;  2  Ibid.,  1219,  1258,  1259. 

{h)  iyte  post 


PARTNERS    AND     COMPANIES.  293 

company,  and  can,  therefore,  supposing  the  comj.  any  to 
be  registered  and  then  Avound  up,  be  enforced  at  law  just 
as  if  the  company  had  never  been  registered  or  ordered 
to  be  wound  up.  {i) 

Companies  empowered  to  sue,  &•€. — The  fact  that  a  com- 
pany has  stopped  payment  does  not  prevent  its  suing 
and  being  sued  by  its  public  officer,  {k)  and  the  bankruptcy 
of  a  pubhc  officer  does  not  prevent  his  being  sued  as 
such,  that  is,  the  plea  of  the  bankruptcy  of  a  person  sued 
as  a  public  officer,  will  not  be  allowed  to  stand  if  the 
plaintiff  will  give  an  undertaking  not  to  issue  execution 
against  the  property  of  the  defendant  himself.  (/) 

Rule  58. — On  the  deatH  of  a  partner,  the  sur- 
viving partners,  and  ultimately  the  last  survivor  or  his 
representative,  must  be  sued  on  contracts  made  with 
the  firm,  {m) 

X.,  Y.,  and  Z.  are  partners;   Z.  dies;  an  action 
on  any  contract  made  by  the  firm,  i.  e.,  by  X.,  Y.,    [275] 
and  Z,,  must  be  brought  against  X.  and  Y.      The 
same  rule  appears  to  hold  good  with  regard  to  unincor- 
porated companies,  supposing  they  are  not  empowered  to 
sue  by  pubHc  officer,  {ri) 

(i)  I  Lindley.  Partnersliip,  2nd  ed..  1259;  Lanyon  v.  Smith,  3  B.  &  S.  938  , 
32  L.  J.  212,  Q.  B. 

{k)  Davidson  v.  Cooper,  11  M.  &  W.  77S. 

(/)  Steward  v.  Dunn,  ii   M.  &  W.  63  ;  Wood  v.  Marston,  7   D.  P.  C.  865  j 
[  I  indley,  Partnership,  2nd  ed.,  501,  503. 
(ni)  Compare  Rule  24. 
(«)  See  Rule  52. 


294  PARTIES     TO    ACTIONS. 


CHAPTER  XIV. 

CORPORATIONS    AND    INCORPORATED    BODIES. 

Rule  59. — A   corporation  or   incorporated  body 
must  be  sued  in  its  corporate  name.* 

A  corporation  or  incorporated  body  must  be  sued  in 
its  corporate  name,  for  the  same  reason  for  which  it  must 
sue  in  its  corporate  name,  viz.,  that  a  corporation  is  a 
body  distinct  from  the  members  who  compose  it.  {a)  It 
does  not,  however,  follow  from  this  fact,  that  the  members 
of  a  corporation,  or  shareholders  in  a  company,  may  not 
be  to  a  greater  or  less  degree  liable  to  satisfy  with  their 
own  property  the  obligations  of  the  corporate  body  to 
which  they  belong.  The  members,  it  is  true,  of  a  regular 
corporation,  e.  g.,  the  mayor  and  aldermen  of  a  borough, 
are  not  personally  liable  for  the  debts  or  obligations  of 
the  borough  ;  and  persons  who  contract  with  such  a  cor- 
poration must  look  to  its  corporate  funds  exclusively. 
But  the  members  of  a  company  are,  as  a  general  rule,  to 
a  greater  or  less  degree  liable  in  their  individual  capaci- 
ties for  the  obligations,  {e.  g.,  contracts)  incurred  by  the 
company,  {b) " 

(a)  See  Rule  25. 

{d)  The  liability,  for  example,  of  a  shareholder  in  a  company,  under  7  Will. 
IV.  &  I  Vict.  c.  73,  or  in  a  company  empowered  by  statute  to  sue,  &c.,  depends 
upon  the  terms  of  the  charter,  letters  patent  or  statute,  under  whicli  the  partic- 
alar  company  is  constituted.  The  liability  of  members,  again,  of  companies 
within  the  Companies'  Clauses  Consolidation  Act  (8  &  9  Vict.  c.  16,  s.  36), 
extends  to  the  amount  of  their  unpaid-up  shares.  Shareholders  in  banking 
companies,  within  7  Geo.  IV.,  c.  46,  are  liable  to  the  full  extent  of  their  individ- 
ual property;  whilst  partners  in  companies  within  tiie  Companies  Act,  1862, 
incur  a  limited  or  an  unlimited  liability,  according  to  the  terms  on  which  the 
company  is  registered.     See  I  Lindley,  Partnership,  2iid  ed.,  3S8,  389. 

I.  Curtis  V.  Murry,  26  Gal.  634;     Newland,  2  Dev.  &  B.  364. 
Winona,  &c.,  R.  Co.  v.  St.  Paul,  &c.,        2.  And  a  creditor's  bill  to  enforce 
R.  Co.,  23  Minn.  360;    lirittain  v.     any   liability   of  officers   or   stock- 


INCORPORA  TED    BODIES.  295 

In  one  case  a  member  of  a  corporate  body  is   [277] 
liable  to  be  directly  sued  at  law  for  the  debts  of  the 
corporation.     This  case  arises  under  the  Companies'  Act, 
1862,  s.  48: — 

"  If  any  company  under  this  act  carries  on  business 
when  the  number  of  its  members  is  less  than  seven,  for  a 
period  of  six  months  after  the  number  has  been  so  reduced, 
every  person  who  is  a  member  of  such  company  during 
the  time  that  it  so  carries  on  business  after  such  period 
of  six  months,  and  is  cognizant  of  the  fact  that  it  is  so 
carrying  on  business  with  fewer  than  seven  members,  shall 
be  severally  liable  for  the  payment  ot  the  whole  debts  of 
the  company  contracted  during  such  time,  and  may  be 
sued  for  the  same,  without  the  joinder  in  the  action  or  suit 
of  any  other  member." 

In  order  to  make  a  person  individually  liable  under 
this  section,  it  is  necessary  that,  first,  the  company  should 
carry  on  business  with  less  than  seven  members  for  a 
period  of  six  months ;  secondly,  the  person  made  liable 
should  be  a  member  during  the  time  that  the  business  is 
so  carried  on  ;  and  thirdly,  he  should  be  cognizant  of  the 
business  being  so  carried  on. 


Rule  60. — A  corporation   or   incorporated   body 
can  not  be  sued  on  a  contract  not  under  seal,  {c) 

{c)  See  Rule  26. 

holders  should  be  against  the  cor-  their  liability  on  their  subscriptions 

poration.     I'ope    v.    Leonard,    115  to  the  capital  stock.    Vick  v.  Lane, 

Mass.  287;  Perkins  v.  Sanders,  56  56  Miss.  684;  Umsted  v.  Buskirk, 

Miss.  736;  Umsted  v.  Buskirk,   17  17  Ohio  St.  116;  Branch  v.  Baker, 

Ohio  St.  ii6-;   and  be  brought  on  53  Ga.  511  ;  Smith  v.  Huckabee,  53 

behalf  of   plaintiff,    and   all    other  Ala   193;  their  liability  to  creditors 

creditors  and  all   the   stockholders  is  that  of  principal  debtors,  not  of 

may  be  joined  defendants.     Pope  sureties      Sonoma  Valley  Bank  v, 

V.   Leonard,    115    Mass.    287;    Me-  Hill,    13    Reporter.   68;   Gilbert   v. 

chanics'     Bank    v.    Chandler.    19  Coal  Co..  62  Ind.  522;  Salt  Lake 

Wis.  437.    All  solvent  stockholders  City  Nat.  Bank  v.  Hendrickson,  40 

should  be  joined,  if  they  are  not  too  N.  J.  L.  54. 
numerous,  in  an  attempt   to  reach 


296  PARTIES     TO    ACTIONS. 

Exception  I. — Where  a  corporation  contracts  concerning 
matters  necessarilv  incidental  to  the  purposes  or  business  of 
the  corporation.  (</) 

Exception  2. — Where  the  contract  relates  to  matters  of  trivial 
importance,  or  of  constant  recurrence.  (<?) 

[278]  Exception    3. — In    some   cases    of    an    implied   con- 

tract. (/) 

A  corporation  may  in  some  instances  sue  on  a  contract 
implied  by  law,  though  no  agreement  under  seal  exists  as 
a  basis  of  the  action.  Thus  a  corporation  may  apparently 
be  sued  for  use  and  occupation,  (^)  for  money  had  and 
received,  by  a  person  from  whom  lees  have  been  wrong- 
fully exacted  by  the  corporation,  (//)  and  for  money  paid 
to  its  use,  by  a  person  who  has  been  compelled  to  pay 
money  which  ought  to  have  been  paid  by  the  corpora- 
tion, [i) 

Exception  4. — Where  a  corporation  is  authorized  by  statute 
to  contract  otherwise  than  under  seal,  (y) 


Rule  6i — A  corporation    or    incorporated    body 
can  not  be  sued  on  contracts  ultra  vires.^ 

{(i)  Ibid.,  Exception  i. 

{e)  Ibid.,  Exception  2.  It  should  be  noticed  that  as  regards  actions 
against  corporations  there  is  no  exception  corresponding  to  Rule  26,  Excep- 
tion 3. 

(y)  Rule  2f),  Exception  4 

(^)  Finlay  v.  Bristol  and  Exeter  Rail.  Co.,  7  Ex.  409  ;  21  L.  J.  1 17,  Ex.  ; 
Low  V.  London  and  North- Western  Rail.  Co.,  18  Q.  B.  632  ;  21  L.  J.  361, 
Q.  B. 

{h)  Hall  V.  Mayor  of  Swansea,  5  Q.  B  526;  12  L.  J.  107,  Q.  B.  Rule  26, 
Exception  5. 

[i)  J'-fferys  v.  Gurr,  2  B.  &  Ad.  833. 

{j)  Rule  26,  Exception  5. 

I.  A  corporation  acts  by  its  offi-  Ry.,  36  N.  H.  17  ;  Chase  v.  Am. 

cers,    agents     and    servants,    and  Steamboat  Co.,  10  R.  I.  86;  Kain 

when  they  act  within  the  scope  of  v.  Smith,  40  N.  Y.  467  ;   Kline  v. 

their  employment,  it  is  the  act  of  Central  Pac.  Ry.  Co.,  37  Cal.  403; 

the  corporation.     Smith  v   Poor,  40  Gould    v.    District,   7    Minn.    200 ; 

Me.  421  ;  Hopkins  v.  Atlantic,  &c.,  Selma,   &;c.,    R.   Co.  v.   Webb,   49 


IN  CORPORA  TED    BODIES.  297 

Corporations  derive  all  their  powers  from  the  charter, 
statute,    &c.,   by  which    they  are  constituted ;  and    can, 
therefore,  have  no  greater  capacity  either  to  contract  or 
to  do  any  other  act  than  is  given  them  by  their  constitu- 
tion.    Any  contract,  therefore,  entered  into  by  or  on  behalf 
of  a  body  corporate  which  is  ultra  vires,  i.  e.,  beyond  the 
powers  of  the  body,  or,  in  other  words,  is  an  agreement 
which  the  corporation  is  not  authorized  by  its  constitution 
to  make,  must  of  necessity  be  invalid.     This  doctrine  has 
no  connection  with  the  law  of  agency  or  the  rights  of 
individual  partners.      It,  indeed,   exactly   illustrates   the 
difference  between  a  partnership  or  unincorporated  com- 
pany and  a  corporate  body.      If  all   the  partners 
in  an  ordinary  firm,  or  all  the  shareholders  in  an    [279] 
unincorporated  company,  were  to  agree  to  enter  into 
a  contract  which  had  nothing  to  do    with   their  original 
agreement  of  partnership  with  one  another,  they  could  if 
they  pleased  enter  into  such  a  contract,  and  it   would, 
provided  they  were  acting  unanimously,  be  binding  upon 
them.     But  the  shareholders  of  a  company   incorporated 
by  charter  or  statute  can  not,  even  though  acting  unani- 
mously, do  anything  contrary  to  the  charter  or  statute  to 
which  they  owe  their  incorporation,  [k)     Nor,  again,  has 
the  objection  to  the  validity  of  a  contract,  that  it  is  ultra 

(k)  I  Lindley,  Partnership,  2nd  ed.,  256,  257;  Society  of  Practical  Knowl- 
edge V.  Abbott,  2  Beav.  559;  Bagshaw  v.  Eastern  Union  Rail.  Co.,  19  L.  J 
410,  Ch. ;  7  Ha.  114. 

Ala.  241;  Shakers  v.  Underwood,  the  extent  of  their  corporate  powers. 

9  Bush.  614.     But  the  corporation  Pearce  v.  Madison,  &c.,  R.  Co.,  21 

is  not  liable  for  an  injury  commit-  How.    441;    Brady     v.    Mayor,    2 

ted  by  an  employee  acting  without  Bosw.   73;    S.    C,   20   N.   Y.    312; 

the  course  of  his  employment  wil-  though  in  case  of  negotiable  paper 

fully  and  maliciously.     Brokaw  v.  notice  of  the  defence  of  ultra  vires 

R.  Co.,  32  N.  J.  L.  331  ;  New  Or-  must    be    brought     home    to    the 

leans.  &c.,  R.  Co.  v.  Harrison,  48  holder.     Police  Jury  v.  Britton,  15 

Miss.  113;  Miller  v.  R.  Co.,  8  Neb.  Wall.  566;  Lexington  v.  Butler,  14 

223;  otherwise,  if  acting  within  the  Wall.    282;    Monument    Bank    v. 

scope  of  their  employment.     Bro-  Glove  Works,  loi    Mass.  57  ;    At- 

kaw  V,  R.  Co.,  32  N.  J.  L.  331  torncy-General  v.  Ins.  Co.,  9  Paige, 

Parties  dealing  with  corporations  470;   Mechanics',  &c.,  Association 

will   be  presumed  to  have  known  v.  White  Lead  Co.,  35  N.  Y.  505. 


2gB  PARTIES     TO    ACTIONS. 

vires,  anvthinjT  to  do  with  the  form  in  which  the  agree- 
ment   IS   made.     A  contract  under  seal  and   made  with 
every  formality  is  nevertheless  invalid,  if  it  be  a  contract 
bevond  the  powers  of  the  corporation  by  or  on  behalf  of 
which  it  is  made.     "  Corporations,  which  are  creations  of 
law.  arc,  when  the  seal  is  properly  affixed,  bound  just  as 
individuals  are  by  their  own  contracts,  and  as  much  as  all 
the  members  of  a  partnership  would  be  by  a  contract  in 
which  all  concurred.     But  where  a  corporation  is  created 
by  an   Act   of  Parliament   for  particular  purposes  with 
special   powers,   then,    indeed,    another   question    arises. 
Their  deed,  though  under  their  corporate  seal,  and  that 
regularly  affixed,  does  not  bind  them,  if  it  appear  by  the 
express  provisions  of  the  statute  creating  the  corporation, 
or  by  necessary  or  reasonable  inference  from  its  enact- 
ments, that   the   deed  was  ultra  vires,  that  is,  that  the 
legislature  meant  that  such  a  deed  should  not  be  made."  (/) 
The  ultra  vires  doctrine  has  been  mainly  applied  to 
contracts  entered  into  by  railway  companies.     An  abso- 
lute covenant,  for  example,  by  such  a  company  to 
[280]    pay  a  certain  sum  of  money  to  a  landowner  in  the 
event   of  an  act  passing,  either  before  taking  his 
land,  in)  or  within  three  months  after  the  act  should  pass, 
{0)  has  been  held  ultra  vires,  and  therefore  not  binding  on 
the  company  ;  so  has  been  held  a  contract  by  a  company 
incorporated  for  the  purpose  of  making  and  maintaining 
a  railway,  to  lease  the  plaintiff's  railway,  and  to  pay  the 
costs  of  soliciting  bills.  (/) 

A  distinction  must  be  drawn  between  contracts  which 
ire.  strictly  speaking,  ultra  vires,  i.  e.,  beyond  the  powers 
of  a  company,  and  contracts  which  are  within  its  powers, 
but  irregular,  i.  e.,  made  in  an  irregular  way.     Contracts 

(/)  South  Yorkshire  Rail.  Co.  v.  Great  Northern  Rail.  Co.,  9  Exch.  55.  84  ; 
22  L.  J.  305,  313,  Ex.,  per  Parke,  B.  See  Taylor  v.  Chichester  and  Midhurst 
Rail.  Co.,  L.  R.  2,  Ex.  356  ;  36  L.  J.  201,  Ex.  (Ex.  Ch.),  esp.  judgment  ot 
Blackburn,  J.  ;  L.  R.  2.  Ex.  375-3S9- 

(n)  Gage  v.  Newmarket  Rail.  Co.,  18  Q.  B.  457  ;  21  L.  J.  398.  Q-  B. 

(<?)  Taylor  v.  Chichester  and  Midhurst  Rail.  Co.,  L.  R.  2,  Ex.  356  ;  36  L.  J. 
201,  Ex. 

(p)  East  Ang'ian  Rail.  Co.  v.  Eastern  Counties  Rail.  Co.,  11  C.  B.  775  '  21 

L.  J.  23,  C.  P. 


INCORPORATED    BODIES.  299 

of  the  former  class  manifestly  do  not  bind  the  company, 
however  regularly  made.  Contracts  of  the  latter  class, 
when  made  by  the  directors  of  a  compan}-,  though  with- 
out the  prescribed  formalities  in  making  them  having 
been  observed,  bind  the  company  as  regards  all  persons 
dealing  with  their  directors  bona  fide,  and  without  notice 
of  the  irregularity  committed  in  making  the  contracts,  (r)' 


Rule  62. — When  a  company  is  in  course  of 
winding  up,  actions  against  the  company  can  either 
be  stayed,  01  can  not  be  brought  without  leave  of  the 
Court,  {s) 

Companies  can  POt  be  made  bankrupt.  They  are 
wound  up  under  the  provisions  of  the  Companies'  Act, 
1862. 

After  a  petition  has  been  presented  to  wind  up   [28  (] 
a  company,  any  action  against  the  company  may  be 
stayed  on  the  application  of  the  company  or  any  creditor 
or  contributory  of  the  company,  {f)     Application  to  stay 
the   proceedings   may,  it   seems,  be  made  either   to  the 

(r)  I  Lindley,  Partner'^hip,  2nd  ed.,  255,  256. 

(j)  This  rule  applies,  it  sliould  be  remarked,  to  incorporated  bodies.  It 
does  not,  however.  *pj^Jy  to  ordinary  corporations,  e.  f.,  the  corporation  of  a 
borough,  &c. 

(/)  Coi  panie»  ^^.  1862,  ss.  85,  197  ;  2  Lindley  Partnership,  2nd  ed„ 
1255. 


300  PARTIES     TO    ACTIONS. 

court  in  which  the  action  is  brought,  {u)  or  to  the  court  m 
which  the  company  is  being  woundup,  i.  e.,  in  most  cases 
the  court  of  chancery. 

When  a  company  is  not  formed  and  registered  under 
the  Companies'  Act,  1862,  it  is  possible  that  the  creditors 
of  the  company  may  be  able  to  proceed  against  the  indi- 
vidual members.  Accordingly,  the  Act  of  1862  contains 
provisions  enabling  the  court  to  stay  proceedings  against 
individual  members,  on  the  application  of  a  creditor  of 
the  company.  Only  a  creditor,  however,  is  entitled  to 
stay  such  proceedings,  {x) 

After  the  order  to  wind  up  a  company  is  made,  no 
action  can  be  brought  against  the  company  without  the 
leave  of  the  court,  {y) 

A  company  may  be  wound  up  either  by  the  court,  or 
subject  to  the  supervision  of  the  court,  or  purely  volun- 
tarily. When  the  winding  up  is  purely  voluntary,  it 
does  not  per  se  prevent  a  creditor  of  the  company  from 
bringing  an  action  against  it.  It  is  not,  therefore,  in  any 
case  necessary  for  him  to  apply  for  leave  to  bring  an 
action ;    but    the    court    {z)    has    jurisdiction  to   restrain 

him. 
[282]  The  result,  therefore,  of  the  winding  up  of  a  com- 
pany is,  either  to  expose  any  person  who  brings  an 
action  against  it,  to  have  his  action  stayed,  or  else  (sup- 
posing a  winding-up  order  to  have  been  made)  to  compel 
him  to  obtain  leave  to  bring  his  action. 

(m)  2  Lindley,  Partnership,  2nd  ed.,  1255 ;  Lanyon  v.  Smith,  3  B.  &  S.  938  . 
32  L.  J.  212,  Q.  B.  Compai-e  Thomas  v.  Wells,  i6  C.  B.,  N.  S.,  508  ;  33  L.  J. 
211,  C.  P.  ;  Gray  v.  Raper,  L.  R.  r,  C.  P.  694. 

U)  2  Lindley,  Partnership,  2nd  ed.,  1258;  Companies'  Act,  1862,  ss.  197, 
198,  201,  202. 

(y)  Companies'  Act,  1862,  s.  87  ;  2  Lindley,  Partnership,  2nd  ed.,  1255. 

(2)  /.  e..  The  Court  of  Chancery,  or  the  court  in  which  the  action  is  brought. 
3  Lindley,  Partnership,  2nd  ed.,  1255. 


INFANTS.  30 » 


CHAPTER  XV. 

INFANTS. 

Rule  63.— An  infant  {a)  can  not  be  sued  on  any 
contract  made  by  him. 

It  being  the  privilege  of  an  infant  not  to  be  bound  by 
his  contracts,  he  can  not  be  sued  in  an  action  ex  contractu, 
e.  g.,  for  a  breach  of  promise  of  marriage,  for  non-dehvery 
of  goods,  or  for  the  non-performance  of  the  conditions  of 
a  bond.     Nor  is  it  possible  to  make  an  infant  liable  for 
what  is  in  reality  a  breach  of  contract,  by  bringing  the 
action  in  the  form  of  an  action  for  tort,  {b)  but  it  is  said 
that  an  infant  can  be  sued  for  money  received,  where  the 
real  cause  of  action  is  a  tort,  e.  g.,  conversion  of  goods. 
"  As  in  the  cases   of  contract,  where  the  law   has    pro- 
tected the  infant  against  his  liability,  he  can  not  be  preju- 
diced by  the  form  of  action  in  which  he  is  sued ;   so  in 
the  cases  ex  delicto,  where  he  is  responsible,  {c)  he  can  not 
derive  any   advantage   from  it.     In  Bristow  v.  Eastman, 
id)  Lord  Kenyon,  C.  J.,  was  of  opinion  that  money  had 
and  received  would  lie  against  the  defendant,  to  recover 
money  which  he  had  embezzled,  notwithstanding  the  in- 
fancy of  the  defendant,  on  the  ground  that  infants 
were  liable  to  actions  ex  delicto,  though   not   ex    [284] 
contractu ;  and  though  the  action  for  money  had 
and  received  was  in   form  an  action  ex  contractu,  yet  ni 

(a)  I.  e.,  a  person  under  twenty-one  years  of  ag.-.  An  infant  has  the  same 
right  to  bring  an  action  as  any  other  person.  An  infant  can  sue  on  a  contract 
[e.g.,  a  promise  of  marriage)  by  which  he  is  not  bound,  and  on  which,  therefore, 
he  can  not  be  sued  (Bac.  Ab..  Infancy.  I.  4  ;  Davis  v.  Mornington.  2  Sid.  tog  ; 
Holt  V.  Ward,  2  Str.  q37  ;  Warwick  v.  Bruce,  2  M.  &  S.  205). 

(p)  See  ante,  and  Chapter  XXIX. 

(<:)  In  detinue,  for  instance.      Mills  v.  Graham,  i  N.  R.  14° 

(d)  I  Eip.  172. 


302  PARTIES     TO    ACTIONS. 

this  case  it  was  in  substance  an  action  ex  delicto  ;  that  if 
trover  had  been  brought  for  the  property  embezzled,  in- 
fancy would  not  have  been  a  defense ;  and  as  the  object 
of  the  action  for  money  had  and  received  was  the  same, 
he  thought  the  same  rule  of  law  ought  to  apply,  and, 
therefore,  that  infancy  ought  not  to  be  a  bar."  {e) 

This  view  of  the  law,  though  approved  by  good 
authorities,  (/)  is  (it  is  submitted)  open  to  doubt.  A 
plaintiff  who  sues  for  money  received  chooses,  for  his 
own  convenience,  to  treat  the  cause  of  action,  whatever 
its  real  nature,  as  a  breach  of  contract,  and  "  if  the  party 
chooses  to  bring  an  action  for  money  had  and  received, 
he  subjects  himself  to  all  the  consequences  of  the  defen- 
dant's being  let  in  to  plead  a  set-off,  infancy,  and  the  like." 
{g)  The  rule,  therefore,  appears  to  be  that  an  infant  can 
not  be  made  liable  in  an  action,  either  in  reality  or  in 
form  ex  contractu. 

Exception  i. — Contracts  for  "  necessaries."  (//) 

Though,  "  strictly  speaking,  all  contracts  made  by  in- 
fants are  either  void  or  voidable,  because  the  contract  is 
the  act  of  the  understanding,  which,  during  their  state  of 
infancy,  they  are  presumed  to  want,  yet  civil  societies 
have  so  far  supplied  that  defect,  and  taken  care  of  them, 
as  to  allow  them  to  contract  for  their  benefit  and  advan- 
tage, with  power,  in  most  cases,  to  recede  from  and 
vacate  it,  when  it  may  prove  prejudicial  to  them ;  and 
where  they  contract  for  necessaries  thej''  are  absolutely 
bound  ,  and  this,  likewise,  is  in  benignity  to  infants,  for 
if  they  were  not  allowed  to  bind  themselves  for  necessa- 
ries, no  person  would  trust  them,  in  which  case 
[285]  they  would  be  in  worse  circumstances  than  per- 
sons of  full  age. 

"  Therefore  it  is  clearly  agreed  by  all  the  books  that 

(e)  I  Selwyn,  N.  P.,  13th  ed.,  159. 

(/)  Chit.,  Contracts,  7th  ed.,  143;  Leake,  Contracts,  226. 
{g)  Altc-n  V.  Midland  Rail.  Co.,  19  C.  B.,  N.  S.,  241,  per  Wll.LES,  J. 
{h)  Coke,   Litt.,  172  a.;  Bac.  Abr.,  Infancy,  I     i  ;   Ryder  v.  Wombwell,  L. 
R.  4,  Ex.  33,  judgment  of  Ex.  Ch. 


INFANTS.  303 

speak  or  this  matter,  that  an  infant  may  bind  himseif  to 
pay  for  his  necessary  meat,  drink,  apparel,  physic,  and 
such  other  necessaries  ;  and  likewise  for  his  good  teaching 
and  instruction,  whereb)  he  may  profit  himself  after- 
wards." (z)  But  the  mere  fact  that  an  infant  has  a  suffi- 
cient income  to  obtain  the  articles  he  requires  with  ready 
money,  does  not  prevent  his  entering  into  contracts  for 
necessaries.  (/) 

What  are  "  necessaries  f — The  word  necessaries,  as 
applied  to  an  infant,  extends  beyond  the  sense  which  is 
given  it  in  ordinary  conversation.  It  not  only  includes 
such  articles  as  are  necessary  to  the  support  of  life,  but 
extends  to  articles  fit  to  maintain  the  particular  person  in 
the  station  and  degree  of  life  in  which  he  is  placed,  {k) 

The  term  necessaries  is,  in  other  words,  purely  relative 
to  the  infant's  position  in  life.  For  instance,  a  threepenny 
ride  in  an  omnibus  may  be  a  necessary  for  a  clerk  with  a 
salary  of  ;^i  a  week ;  a  carriage  mav  be  a  necessary  for  a 
person  in  a  different  position ;  an  infant,  again,  orders  an 
expensive  coat,  but  this  may  be  a  necessary  if  it  appears 
that  his  trade  or  calling  is  of  that  nature  that  such  a  coat 
is  necessary  for  his  health,  and  so  forth.  (/) 

From  the  relative  character  of  the  term,  combined 
with  the  tendency  of  juries  to  find  an  infant,  if  it  be  possi- 
ble, liable  on  contracts  of  which  he  has  received  the 
benefit,  has  arisen  a  considerable  variety  in  the  decisions 
on  the  question  as  to  what  things  are  and  what  are  not 
necessaries.  Thus,  a  livery  for  the  servant  of  a  captain  in 
the  army,  (;;z)  regimentals  for  the  member  of  a 
volunteer  corps,  [n)  horses  for  a  person  in  a  good  [286] 
position  in  life,  {d)  have  been  held  necessaries.  So, 
necessaries  for  an  infant's  wife  have  been  held  necessaries 
for  an  infant,  (/)  and  an  infant  widow  lias  been  considered 

(/)  I'ac.  Abr.,  Infancy,  I.  r. 

(>)   lUirghart  v.  Hall,  4  M.  &  W.  727. 

{k)  Peters  v.  Flemin;:,  6  M.  &  W.  46.  judgment  of  Parkk,  H. 

(l*i  See  KvfJer  v.  Womhwcll,  L.  R.  3,  Ex.  90,  judginenl  of  Hkamwf.i.l,  B. 

(«)   Hands  v.  Slaney.  8  T.  R.  578. 

(»)  Coate>  V.  Wilson   5  E^p.  152. 

{p)  Hart  V.  Pnter,  i  Jur.  623. 

(/»)  Turner  v.  Trishy,  1  Str.  168  ;  Rainsford  v.  Fenwick,  Carter,  215. 


3C4  PARTIES     TO    ACTIONS. 

bound  by  a  contract  for  the  expenses  of  her  husband's 
funeral,  {q)  So,  a  contract  for  necessaries  for  a  man's  law- 
ful child  is  a  contract  for  necessaries  for  himself;  and  "if 
a  man  under  the  years  of  twenty-one  contract  for  the 
nursing  of  his  lawful  child,  the  contract  is  good,  and  shall 
not  be  avoided  by  infancy,  no  more  than  if  he  had  con- 
tracted for  his  own  aliment  and  education."  {r)  So  the 
cost  of  a  marriage  settlement  for  a  woman  under  age,  who 
had  no  property  of  her  own  to  settle,  has  been  held  {s)  a 
necessary  for  her.  The  foregoing,  and  other  examples 
which  might  be  given,  {/)  show  how  wide  an  extension 
has  been  given  to  the  term  necessaries,  as  meaning  things 
suitable  to  an  infant's  condition.  On  the  other  hand, 
dinners  and  desserts  have  been  held  not  to  be  necessaries 
for  an  undergraduate  at  college,  {ii)  and  cigars,  {x)  pres- 
ents for  friends,  {y)  subscriptions  to  benevolent  objects, 
{3)  articles  of  mere  ornament,  such  as  diamond  studs,  {a) 
have  been  considered  not  to  come  within  the  class  of 
necessaries.  An  infant,  further,  can  not  be  charged  on  a 
bill  of  exchange  accepted  by  him,  even  for  necessaries,  {b) 

nor  on  an  account  stated  in  respect  of  a  debt  due 
[287]    for  necessaries,  nor  can  an  infant  bind  himself  by 

executing  a  cognovit,  {c)  or  a  bond,  (d)  for  a  debt 
due  for  necessaries. 


{q)  Chappie  v.  Cooper,  13  M.  &  W.  252  ;  13  L.  J.  286,  Ex. 

(r)  Bacon,  Law  Maxims,  86  ;  Chappie  v.  Cooper,  13  M.  &  W.  259,  260, 
judgment  of  Ai.derson,  B. 

{s)  Helps  V.  Clayton,  17  C.  B.,  N.  S.,  553  ;  34  L.  J.  i,  C.  P.,  see  esp.  34  L. 
J.  7,  C.  P.  ;  judgment  of  the  court. 

(/)  For  further  examples,  see  Chit.,  Contracts,  7th  ed.,  136-140 ;  Leake, 
Contracts,  232-234. 

(«)  Brooker  v.  Scott,  ri  M.  &  W.  67. 

{x)  Bryant  v.  Richardson,  cited  in  Ryder  v.  Wombwell,  L.  R.  3,  Ex.  93. 

iy)  Ibid.,  90. 

(2)  .See  Chappie  v.  Cooper,  13  M.  &  W.  252  ;  13  L.  J.  286,  Ex. 

{a)  Ryder  v.  Wombwell,  L.  R.  4,  Ex.  32  (Ex.  Ch.) ;  38  L.  J.  8,  Ex. 

{l>)  Williamson  v.  Watts,  i  Camp.  552. 

V)  Truman  v.  Hurst,  i  T.  R.  40. 

(d)  Oliver  v.  Woodroffe,  4  M.  &  W.  650;  but  conf  Co..  Litt.,  172  a;  Baylis 
T.  Dinely,  3  M.  &  S.  477,  482 ;  Marlow  v.  Pitfield,  i  P.  Wm.  558 


INFANTS.  305 

Two  questions  with  regard  to  an  infant's  necessaries 
have  given  rise  to  discussion,  {e) 

First  Question. — Can  articles  be  necessaries  with  which 
an  infant  is  fully  supplied  ? 

Suppose  A.,  a  tradesman,  to  supply  X.,  an  infant,  with 
twenty  loaves  of  bread,  at  a  time  when  X.  is  already  fully 
supplied  with  bread  ;  will  X.  be  hable  for  the  price  of  the 
twenty  loaves  as  for  the  price  of  necessaries  ?  or,  to  put 
the  same  inquiry  in  another  form,  can  X.,  when  sued  by 
A.  for  the  price  of  the  loaves  give  evidence  that  he  was 
already  fully  supplied  with  bread  ? 

The  answer  usually  given,  and  supported  by  high 
authority,  is,  that  articles  with  which  an  infant  is  already 
fully  supplied  are  not  necessaries  for  him  ;  and  that,  though 
"  an  infant  may  contract  a  debt  for  necessaries,  notwith- 
standing he  has  a  sufficient  income  to  supply  himself  with 
ready  money,  (/)  and  the  party  supplying  necessaries  to 
an  infant  is  not,  as  a  general  rule,  bound  to  inquire  into 
his  circumstances  before  giving  credit  to  him,  {g)  yet  the 
fact  (h)  of  the  infant  being  properly  provided  with  any 
article  is  material  with  regard  to  the  question  of  the 
necessity  of  a  farther  supply  of  the  same  article."  {i) 

The  correctness  of  this  answer  is  doubtful.  The  court 
of  exchequer  have  held  in  a  recent  case  {k)  that  evidence 
could  not  be  tendered  to  show  that  an  infant  was 
already  fully  supplied  with  articles  similar  to  those  [288] 
treated  by  the  plaintiff  as  necessaries,  unless  at  any 
rate  it  could  be  shown  that  the  fact  of  the  infant  being  so 
supplied  was  within  the  knowledge  of  the  plaintiff  when 
he  supplied  the  articles  ;  and  the  court  of  exchequer  cham- 
ber have,  in  the  same  case,  treated  the  question  under 
discussion  as  one  the  answer  to  which  is  uncertain.  (/) 


{e)  Leake,  Contracts,  234. 
(/)  Hurtjhart  v.  Hall,  4  M.  &  W.  727. 
{g)  lirayshaw  v.  Eaton,  5  B.  N.  C.  231. 
{k)  B.iinbridge  v.  Pickering,  2  W.  Bl.  K325. 

(i)  Lcakc,  Contracts,   233;  Cliiity,  Contracts,  7th  cd.,  136,    137,  140.     See 
Ryder  v.  Wombwell,  L.  R.  3,  Ex.  97,  judgment  of  Bkamwell,  B. 
(/fr)  Ibid.,  L.  R.  3,  Ex.  90  ;  37  I-.  J,  48.  Hx. 
(/)   Ryder  v.   Wombwell,  L.  R.  4  E\.  42. 
20 


3o6  PARTIHS     TO    ACTIONS. 

"  It  becomes,  therefore,"  the  court  say,  "  unnecessary 
to  decide  whether  the  evidence  tendered  was  properl}- 
rejected  or  not.  That  is  a  question  of  some  nicety,  and 
the  authorities  are  bv  no  means  uniform.  In  Bainbridge 
V.  Pickering  {i?i)  the  Court  of  Common  Pleas  seem  to  have 
acted  on  a  principle  which  would  make  the  evidence 
admissible.  In  Brayshaw  v.  Eaton,  {n)  BOSANQUET,  J., 
treats  it  as  clearly  admissible,  and  on  those  authorities 
the  Court  of  Queen's  Bench  (then  consisting  of  Black- 
burn, J.,  and  Mellor,  J.)  acted  in  Foster  v.  Redgrave.  (<?) 
There  is  much  to  be  urged  in  support  of  the  view  taken 
by  the  majority  in  the  court  below,  and  we  desire  not  to 
be  understood  as  cither  overruling  or  affirming  that 
decision.  If  ever  the  point  again  arises,  the  court  before 
which  it  comes  must  determine  it  on  the  balance  of  au- 
thority and  on  principle  without  being  fettered  by  a 
decision  of  this  court."  (/) 

Second  Questioji. — Are  there  things  which  can  not  be 
necessaries? 

It  has  been  maintained,  on  the  one  hand,  {q)  though  (it 
is  conceived)  erroneously,  if)  that  the  question  whether  a 
gi\en  article,  e.  g.,  a  golden  goblet  given  by  a  young  gen- 
tleman to  one  of  his  acquaintances,  is,  or  is  not,  a  necessary, 
is  a  mere  question  of  fact  to  be  decided  with  reference  to 
the  circumstances  of  the  particular  case,  and  that 
[289]  there  are  no  articles  which  may  not  conceivably 
fall  under  the  head  of  necessaries. 

It  has  been  maintained,  on  the  other  hand,  that  there 
are  certain  things  w^hich  are  so  obviously  luxuries  that 
they  can  as  a  matter  of  law  be  pronounced  not  to  be  in 
any  case  necessaries,  or,  in  other  words,  that  there  are 
articles  of  mere  luxury  which  can  never  be  necessaries, 
though  luxurious  articles  of  utility  sometimes  may  be  so. 
As  examples  of  mere  luxuries  have  been  cited,  ear-rings 

(ni)  I  Wm.  Bl.  1325. 

(«)  7  Scott,  183. 

\o)  Cited  L.  R.  4,  Ex.  35  n. 

(/>)  Ryder  v.  Wombwell,  L.  R.  4,  Ex.  42,  per  Curiam. 

\q)  Ibid.,  L.  R.  3,  Ex.  102.  judgment  of  Kelly,  C.  B. 

(r)  Ibid.,  L.  R.  4,  Ex.  40  (Ex.  Ch.). 


INFANTS.  307 

for  a  man,  spectacles  for  a  blind  person,  a  wild  animal, 
and  so  forth,  {s) 

A  third  view,  which  differs  though  but  slightly,  yet 
materially,  from  the  doctrine  that  there  are  some  things 
which  can  not  be  necessaries,  and  which  is  (it  is  sub- 
mitted; correct,  is  as  follows  :— There  are  no  articles  of 
which  it  can  be  pronounced  as  a  matter  of  law  that  they 
can  under  no  circumstances  be  necessaries;  but  while 
there  are  some  articles  {e.  g.,  bread)  which,  prima  facie, 
are  necessaries,  there  are  other  articles  {e.  g.,  cigars) 
which,  prima  facie,  are  not  necessaries.  When  a  trades- 
man sues  an  infant  for  the  price  of  the  latter,  the  burden 
lies  upon  him  of  showing  affirmatively  that  articles  which 
are,  prima  facie,  not  necessaries,  are  made  necessaries  by 
the  special  circumstances  of  the  case.  If  he  does  not 
produce  evidence  to  this  effect,  and  evidence  on  which  a 
jury  may  reasonably  act,  he  has  not  made  out  his  case 
and  the  judge  should  nonsuit  him  without  submitting  the 
case  to  the  jury,  {t) 

The  result,  therefore,  of  the  law  as  to  an  infant's 
necessaries  may  be  seen  from  the  following  examples,  in 
which  A.  is  a  tradesman  and  X.  an  infant. 

A.  sells  to  X.  bread,  vegetables,  &c. ;  A.  can  recover 
from  X.  the  price  of  the  goods  on  showing  that  he  sup- 
plied them  to  X.  on  X.'s  order,  though  it  is  possible  that 
X.  may  defend  himself  by  proving  that  he  w^as 
already  fully  supplied  with  bread,  &c.,  and  proba-  [290] 
ble  that  he  may  do  so  by  showing  that  A.  knew  of 
his  being  so  supplied. 

A.  sells  X.  cigars.  These  are,  prima  facie,  not  neces- 
saries ;  A.  therefore  can  not  recover  their  price  by  simply 
proving  the  sale  to  X.  If  this  is  all  he  can  prove,  he  will 
be  nonsuited.  But  he  may  produce  evidence  that  the 
cigars  were  necessaries  for  X.,  e.  g.,  that  X.  was  ordered 
by  his  physician  to  smoke  cigars.  On  the  production  of 
such  evidence  the  case  will  go  to  the  jury,  and  A.  will 

(j)  Ryder  v.  Wombwell,  L.  R.  3.  Ex.  96,  judf^ment  of  Hramwkll.  B. 
(/)  See.  in  supjKirt  of  this  view,  Ryder  v.  Womljwcll,  L.   R.  A,    Ex.  38-4< 
udyn  ent  of  Exchequer  Chamber. 


3o8 


PARTIES     TO    ACTIONS. 


recover  if  they  are  satisfied  that  the  cigars  were,  undei 
the  whole  circumstances  of  the  case,  necessaries  for  X. ' 


I.  An  infant  is  liable  for  money 
paid  for  him  for  necessaries  he  had 
purchased.  Randall  v.  Sweet,  i 
Denio,  460;  Swift  v.  Bennett,  10 
Cush.  436;  Conn  v.  Coburn,  7  N. 
H.  36S;  Haine  v.  Tarrant,  2  Hill 
(S.  C.)  400.  His  express  promise 
to  pay  for  necessaries  need  not  be 
proved.  Gay  v.  Ballou,  4  Wend. 
403.  But  he  is  only  liable  for  the 
actual  value  thereof.  Hyer  v. 
Hyatt,  3  Cranch  C.  C.  276;  Com- 
monwealth V.  Huntz,  2  Pa.  3.'3; 
Passenger  R.  Co.  v.  Stutler,  54  Pa. 
St.  375  ;  Bouchell  v.  Clary,  3  Brev. 
194.  When  an  infant  is  absent 
from  home,  and  not  cared  for  by 
his  parents  or  guardian,  he  is  re- 
sponsible for  necessaries.  Angel  v. 
M'Lellan,  16  Mass.  28;  Wailing 
v.  Toll,  9  Johns.  141  ;  Kline  v. 
L'Amoureaux,  2  Paige,  419;  Con- 
nolly v.  Hull,  3  McCord,  6;  Jones 
v.  Colvin,  I  McMull.  14;  Elrod  v, 
Myers,  2  Head,  33.  A  promise  will 
be  implied  on  the  part  of  an  infant 
without  a  protector,  to  pay  for 
necessaries  furnished  him.  Hyman 
V.  Cam,  3  Jones,  in  ;  but  not  for 
an  over  supply  of  articles  not  in 
themselves  necessaries.  Johnson 
v.  Lines,  6  Watts  &  S.  80. 

And  one  cannot  recover  for  neces- 
saries beyond  the  infant's  income, 
when  he  has  a  guardian.  Hussee 
V.  Roundtree,  Busb.  no.  And  if 
he  has  an  allowance  from  the  court 
or  any  source  sufficient  to  supply 
himself,  he  will  not  be  liable  for 
necessaries  furnished  on  credit. 
Rivers  v.  Gregg,  5  Rich.  Eq.  274. 


The  guardian  is  the  sole  judge  oi 
what  are  necessaries,  and  when  ho 
furnishes  such  as  he  thinks  proper, 
the  infant  will  not  be  held  liable  for 
more  to  a  third  person.  Kraker  v. 
Byram,  13  Rich.  163. 

An  infant  is  bound  for  neces- 
saries to  carry  on  a  business,  whiclf 
he  does  with  his  guardian's  con- 
sent. Rundel  v.  Keeler,  7  Watts 
237 ;  Watson  v.  Hensel,  7  Watts 
344;  Mohney  v.  Evans,  51  Pa.  St 
80. 

An  infant's  promissory  note  foj 
necessaries  has  no  force  as  such. 
McCrillis  v.  Hour,  3  N.  H.  348; 
Swasey  v.  Vanderheyden,  10  Johns, 
33  ;  Fenton  v.  White,  4  N.  J.  L. 
100;  Dubose  V.  Wheddon,  4  Mc- 
Cord, 221  ;  McMinn  v.  Richmond, 
6  Yerg.  9  ;  Beeler  v.  Young,  i  Bibb, 
519  ;  though  the  payee  may  sue  on 
the  instrument  and  recover  the 
value  of  the  necessaries  without  re- 
gard to  the  amount  of  the  face  of 
the  note;  Earle  v.  Reed,  10  Mete. 
387 ;  Haines  v.  Tennant,  2  Hill 
(S.  C.)  400;  Stone  v.  Dennison,  13 
Pick.  I  ;  taking  judgment  for  the 
part  of"  the  consideration  which  is 
good  as  between  adults ;  Parish  v. 
Stone,  14  Pick.  198;  Harrington  v. 
Stratton,  22  Pick.  516;  Goodwin  v. 
Morse,  9  Mete.  278. 

To  bind  an  infant  for  necessaries 
the  credit  must  have  been  originally 
given  him.  Varney  v.  Young,  n 
Vt.  258;  Wailing  v.  Toll,  9  Johns. 
131  ;  Rundell  v.  Keeler,  7  Watts, 
237  ;  Smith  v.  Young  2  Dev.  &  Bat. 
26 ;  Rivers  v.  Gregg,  5  Rich.  274 ; 


INFANTS. 


30s 


Exception  2.— Contracts  in  respect  of  permanent  property 
occupied  or  possessed  by  an  infant. 

There  seems  to  be  authority  for  asserting,  («)  that 
where  an  infant  becomes  possessed  by  means  of  a  con- 
tract of  real  estate,  or  other  permanent  property  to  which 
certain  obligations  {e.  g.,  the  payment  of  rent)  are  attached, 
he  is  liable  to  these  obligations  as  long  as  he  continues  in 
possession,  and  until  he  disagrees  to  or  renounces  the 
estate  or  repudiates  the  possession  of  the  property  and 
can  be  sued  in  respect  of  them.     Thus  where  an    infant 

{tt)  Leake,  Contracts,  227,  22S. 


Meholson  v.  Wilborn,  13  Ga.  467  ; 
Simms  v.  Norris,  5  Ala.  42  ;  Sink- 
lear  v.  Emert,  18  111.  63. 

A  common  school  education  is  a 
necessary.  Raymond  v.  Loyle,  10 
Barb  489  ;  but  not  a  college  educa- 
tion ;  Middlebury  College  v.  Chand- 
ler, 16  Vt.  683.  The  services  of  an 
attorney  in  defending  a  bastardy 
proceeding  have  been  held  neces- 
saries. Barker  v.  Hibbard,  54  N. 
H.  539  ;  and  in  prosecuting  for  a 
seduction  ;  Munson  v.  Washband, 
31  Conn.  303;  and  the  services  of 
a  dentist ;  Strong  v.  Foote,  42 
Conn.  203.  The  following  authori- 
ties will  tend  to  illustrate  the  cases 
that  arise  :  Bradley  v.  Pratt,  23 
Vt.  378;  Thrall  v.  Wright,  38  Vt. 
494;  Phelps  V.  Worcester,  11  N. 
H.  368;  Tupper  v.  Cadwell,  12 
Mete.  559;  Merriam  v.  Cunning- 
ham, II  Cush.  40;  Atcheson  v. 
Bruff,  50  Barb.  38 ;  Freeman  v. 
Bridger,  4  Jones,  i  ;  Glover  v.  Ott, 
I  McCord,  572  ;  Ramwater  v.  Dur- 
ham, 2  Nolt  &  McCord,  524;  Grace 
v.  Hale,  2  Humph.  27:  Bceler  v. 
Young,  I  Bibb,  519;  Sams  v.  Stock- 
ton,   14  B.   Mon.  232  ;    Perkins  v. 


Bailey,  6  La.  Ann.  256. 

The  fundamental  limitation  of 
necessaries  is  well  stated  by  Fow- 
ler, J.,  in  Insurance  Co.  v.  Noyes, 
32  N.  H.  368  :  "  It  is  evident  from 
the  most  cursory  examination,  that 
the  contract  being  advantageous  or 
disadvantageous  to  the  infant  or  his 
estate,  furnishes  no  reliable  test  on 
the  point  as  to  whether  or  not  the 
subject  matter  of  such  contract  is 
properly  included  within  the  term 
'  necessaries.'  *  *  *  That  neces- 
saries concern  the  person  and  not 
the  estate,  furnishes  the  true  test  on 
this  subject.  Although  there  may 
be  isolated  cases  where  a  contrary 
doctrine  has  obtained,  we  appre- 
hend the  true  rule  to  be  that  those 
things,  and  those  only,  are  prop- 
erly to  be  deemed  necessaries 
which  pertain  to  the  becoming  and 
suitable  maintainance  and  support, 
clothing,  health,  education  and  ap- 
pearance of  the  infant,  according  to 
his  condition  and  rank  in  life,  the 
employment  or  pursuit  in  which  he 
is  engaged  and  the  circumstances 
under  which  he  may  be  placed  as 
to  profession  or  position." 


310  PARTJnS     TO    ACTIONS. 

was  admitted  to  a  copyhold  estate,  and  retained  possession 
of  it  after  coming  of  age,  he  was  held  liable  for  the  hnes 
due  upon  it,  and  an  opinion  was  expressed  by  Yates,  J., 
that  he  would  have  been  liable  to  an  action  even  during 
infancy. 

"  If  the  defendant  was  still  an  infant   I  should   think 
this   action   maintainable.     Debt  perhaps   would   not  lie. 
.     .     .     But   assumpsit,  I  think,  would  lie,  as  the   infant 
continued  to  occupy  and  enjoy  the  estate.     In  Kirton  v. 
Elliott,  {v)  the  plaintiff  recovered   against  an  infant  the 
rent  upon  a  lease  made  to  him,  and  it  is  there  said  that  if 
a  lease  be  made  to  an  infant,  and  he  occupies  and  enjoys, 
he  shall  be  charged  with  the  rent."  {x)     So,  "  in- 
[291]    fants  having  become  shareholders  in  railway  com- 
panies, have   been  held   liable  to   pay  calls   made 
whilst  they  were   infants,  {y)     They  have  been  treated, 
therefore,  as  persons  in  a  different  situation  from  mere 
contractors,  for  then  they  would  have  been  exempt.     But, 
in  truth,  they  are  purchasers,  who  have  acquired  an  in- 
terest, not  in  a  mere  chattel,  but  in  a  subject  of  a  perma- 
nent  nature,     .     .     .     and    with    certain   obligations   ;ft- 
tached  to  it,   which  they  were  bound  to  discharge,  and 
have  been  thereby  placed  in  a  situation  analogous  to  an 
infant  purchaser  of  real  estate,  who  has  taken  possession, 
and  thereby  becomes  liable  to  all  the  obligations  attached 
to  the  estate, — for  instance,  to  pay  rent,  (-sr)  in  the  case  of  a 
lease  rendering  rent,  and  to  pay  a  fine  due  on  the  admis- 
sion, in  the  case  of  a  copyhold  to  which  an  infant  has  been 
admitted, — unless  they  have  elected  to  waive  or  disagree 
to    the   purchase   altogether,  either  during  purchase  or 
after  full  age,  at  either  of  which  times  it  is  competent  for 
an  infant  to  do  so."  {a) 

Father  not  liable. — A  father  is,  as  such,  under  no  legal 
liability    to    pay    for   necessaries   supplied    to   his    child. 

(v)  2  Bulst.  69. 

ix)  Evelyn  v.  Chichester,  3  Burr.  1711)  judgment  of  Yates,  J. 
iy)  Cork  and    Hnndon   Rail.  Co.   v.  Cazenove,  ro  Q.  B.  935  ;  Leeds  and 
Thirsk  Rail  Co.  v.  Fearnley,  4  Exch.  26  ;  18  L.  J.  330,  Ex. 
(2)  21  Hen.  VI.,  31  B. 
{a)  North-Weslern  Rail.  Co.  v.  McMichael,  5   Exch.  123,  124,  per  CURIAM. 


INFANTS.  311 

•*  In  point  of  law  a  father  who  gives  no  authority,  and 
enters  into  no  contract,  is  no  more  liable  for  goods  sup- 
plied to  his  son  than  a  brother  or  an  uncle  or  a  mere 
stranger  would  be.     From  the  moral  obligation  a  parent 
is   under   to   provide    for   his   children,    a  jury    are   not 
unnaturally  disposed  to  infer  against  him  a  liability,  in 
respect  of  claims  upon  his  son,  on  grounds  which  warrant 
no  such  inference  in  law."  {b)     The  mere  fact  that  the 
goods  supplied  were  necessaries,  and  were  supplied  with 
the  knowledge  of  the  parent,  is  not  of  itself  sufficient  to 
support  an   inference   of  a  promise  on  the  part   of  the 
father  to  pay  for  them.      In  order  to  bind  him  in  point  of 
law  for  a  debt  incurred  by  his  child,  it  must  be 
proved  that  he  has  contracted  to  be  bound,  just  in    [292] 
the  same  manner  as  a  contract  would  be  proved 
against  any  other  person,  {c)     A  jury,  however,  will  infer 
that  a  father  has  promised  on  comparatively  slight  evi- 
dence. 


Rule  64. — An  adult  {i  e.,  a  person  of  or  over 
twenty-one  years  of  age)  can  not  be  sued  on  con- 
tracts made  by  him  during  infancy. 

This  rule  applies  without  exception  to  contracts  which 
the  court  can  pronounce  to  be  to  the  infant's  prejudice, 
and  therefore  absolutely  void  ;  (d)  e.  g.,  a  bond  conditioned 
for  the  payment  of  interest,  {e)  or  a  bond  with  a  penalty.  (/) 
All  the  exceptions  to  it  are  either  contracts  on  which  tiie 
infant  himself  might  be  sued,  or  contracts  which  are  not 
void,  but  only  voidable  at  the  election  of  the  infant  on 
coming  of  age. 

(b)  Mortimore  v.  Wri^iht,  6  M.  &  W.  486.  judgment  of  Ahinger.  C.  B. 
{c)  Leake,  Contracts,  27,  28  ;  Mortimore  v.  Wright,  6  M.  &  W.  482.      Com- 
pare Bazeiey  v.  Forder,  L.  R.  3,  Q.  H.  559  I  37  L.  J.  237,  Q.  B. 
{d)  Keane  v.  Boycott,  2  H.  Bl.  511. 
{e)  8  Eait,  330. 
(/)  Baylis  v.  Dineley,  3  M.  &  S.  47-. 


312  PARTIHS     rO    ACTIONS. 

Exception  i. — Contracts  on  which  an  infant  might  be  sued 

An  adult  can  be  sued  on  all  the  contracts  made  during 
infancy  (viz.,  contracts  for  necessaries)  for  which  he 
would  have  been  liable  while  an  infant,  {g) 

Exception  2. — Contracts  ratified  in  writing  after  full  age. 

An  adnlt  may  be  sned  on  a  contract  made  during  in- 
fancy {c.  g.,  for  the  purchase  of  ^oods  not  necessaries), 
if,  after  he  comes  of  age,  he  confirms  it  by  a  new 
[293]  promise  or  ratification,  (//)  and  this  promise  will  be 
binding  without  any  fresh  consideration  for  it.  {i) 
"  The  principle  on  which  the  law  allows  a  party  who  has 
attained  his  age  of  twenty-one  3^ears,  to  give  validity  to 
contracts  entered  into  during  his  infancy  [is]  that  he  is 
supposed  to  have  acquired  the  power  of  deciding  for 
himself  whether  the  transaction  in  question  is  one  of  a 
meritorious  character  by  which  in  good  conscience  he 
ought  to  be  bound."  (7 ) 

The  promise  or  ratification  must  be  in  writing,  and 
must,  under  9  Geo.  IV.  c.  14,  s.  5,  be  signed  by  the  party 
himself,  {k) 

It  has  been  held  that  "  any  written  instrument  signed 
by  the  party  which,  in  the  case  of  adults,  would  have 
amounted  to  the  adoption  of  the  act  of  a  party  acting  as 
agent,  will  in  the  case  of  an  infant  who  has  attained  his 
majority,  amount  to  a  ratification ;  "  (/)  and  further,  that 

{g)  An  adult  may  be  freed  from  liability  for  such  contracts  in  consequence 
of  their  being  barred  by  the  Statutes  of  Limitations  ;  e.  g.,  if  an  infant  contract 
for  necessaries  at  the  age  of  twelve,  the  remedy  against  him  will  be  barred  be- 
fore he  has  attained  the  age  of  twenty-one. 

(//)  Provided  the  contract  be  not  originally  absolutely  void  (Baylis  v.  Dine- 
ley,  3  M.  &  S.  477),  in  which  case  it  is,  strictly  speaking,  not  a  contract. 

(i)  As  to  consideration,  see  a/t/e. 

(/)  Williams  v.  Moor,  11  M.  &  W.  256,  264,  per  CURIAM. 

(k)  9  Geo.  IV.,  c.  14,  s.  5.  "The  Mercantile  Law  Amendment  Act,  1856" 
{19  &  20  Vict.  c.  97),  has  not  taken  away  the  necessity  of  the  ratification  being 
signed  by  the  party  himself.     Leake,  Contracts,  229. 

(/;  Harris  v.  Wall,  i  Exch.  122,  I30,.per  Curiam  ;  Rowe  v.  Hopwood,  \- 
R.  4.  Q.  B.  I. 


INFANTS.  313 

the  ratification  may  be  made  upon  a  condition,  or  to  a 
limited  extent.  Thus  if  X.  promise  in  a  letter,  signed  by 
himself,  to  pay  a  debt  incurred  during  infancy,  when  he 
is  able,  such  new  promise  is  binding  upon  him  condition- 
ally on  his  becoming  able  to  pay.  {m) 

The  confirmation  or  ratification  of  a  contract  made 
during  infancy  must  in  all  cases  be  before  action 
brought.  («) 

Exception  3. — Contracts  connected  with  the  possession  of 
permanent  property  and  not  repudiated  after  full  age. 

Where  an  infant  not  only  contracts  but  also  [294] 
acquires  an  interest,  not  in  a  mere  chattel,  but  in  a 
subject  of  a  permanent  nature,  (^)he  is  liable  to  the  obliga- 
tion attached  to  the  contract  unless  he  repudiates  the 
contract  within  a  reasonable  time  after  he  comes  of  age. 
Thus  if  a  lease  be  made  to  an  infant  during  his  minority, 
he  ratifies  it  by  remaining  in  possession  after  he  comes  of 
age,  and,  on  what  is  really  the  same  principle,  if  a  lease  is 
made  by  an  infant,  he  ratifies  it  by  accepting  rent  after  he 
attains  his  majority ;  {p)  and  an  infant  member  of  a  firm 
who  does  nothing  to  disaffirm  the  partnership  upon  com- 
ing of  age,  has  been  held  to  continue  a  partner,  and  to  be 
liable  on  contracts  subsequently  made  by  the  firm,  (</) 
though  not  for  debts  incurred  by  the  firm  during  his  minor- 
ity, (r)  Perhaps,  however,  he  may  be  liable  on  contracts 
entered  mto  before  he  reached  the  age  of  twenty-one,  but 
persisted  in  by  the  firm  after  that  date,  {s)  An  infant  share- 
holder, again,  who  after  he  comes  of  age  permits  his  name 
to  continue  registered,  thereby  ratifies  the  agreement  by 

(/;/)  See  Cole  v.  Saxby,  3  Esp.  160  ;  and  see  generally,  Leake,  Contr.icls 
229-251. 

(«)  Thornton  v.  Illinj^wurth,  2  R.  &  C.  824. 

\o)  London  and  North- Western  Rail.  Co.  v.  McMichael,  20  L.  J.  99  Ex. 
«  Exch.  123,  jiuli^'mcnt  of  Pakke,  B. 

(/))  r.aylis  V.  Dineley,  3  M.  &  .S.  477,  481  ;  2  Steph.  Com.,  6th  ed.,  329. 

(g)  Goodc  V.  Harrison,  5  H.  &  Aid.  147. 

(r)  Lindley,  Partnership,  2nd  ed.,  80-88. 

(/)  Ibid. 


314  PARTIES     TO    ACTIONS. 

which  he  originally  became  a  shareholder,  {t)  and  there- 
tore  is  liable  for  calls  made  as  well  before  as  after  he  came 
of  age.  («) 


Rule  65. — If  one  of  several  co-contractors  is  an 
infant,  and  the  others  are  adults,  the  adults  alone 
must  be  sued. 

[295]  If  a  joint  contract  is  made  by  X.,  an  infant,  and  Y., 
an  adult,  an  action  for  the  breach  of  it  may  and  should 
be  brought  against  Y.  only.  If  an  action  be  brought  against 
them  jointly  it  must  fail,  for  on  X.  pleading  infancy,  the 
plaintiff  can  not  enter  a  nolle  prosequi  as  to  him,  and  con- 
tinue the  action  against  Y.  {x)  but  must  discontinue  the 
action  and  sue  Y.  separately,  {y) 

But  if  Y.  alone  be  sued,  and  he  plead  X.'s  non-joinder 
m  abatement,  the  plaintiff  may  meet  the  plea  by  replying 
X.'s  infancy,  {z) 

(/)  Ibid. 

{tt)  London  and  North-Western  Rail.  Co.  v.  McMichael,  5  Exch.  114;  20 
L.  J.  97,  Ex.  ;  Cork  and  Bandon  Rail.  Co.  v.  Cazeiiove,  10  Q.  B.  935  ;  Dublin 
and  Wicklow  Rail.  Co.  v.  Black,  22  L.  J.  94,  Ex.  ;  8  Exch.  181.  (Ex.  Ch.) 
and  contrast  Newry  and  Inniskilling  Rail.  Co.  v.  Combe,  3  Exch.  565  ;  18  L 
J.  325.  Ex. 

(jc)  Boyle  v.  Webster,  21  L.  J.  202,  Q.  B.  ;  17  Q.  B.  950. 

{}•)  Burgess  v.  Merrill,  4  Taunt.  468  ;  Chit.,  Contracts,  7th  ed.,  143. 

(z)  Chit.,  Contracts,  7th  ed.,  143  ;  Gibbs  v.  Merrill,  3  Taunt.  307. 


HUSBAND    AND     WIFE.  315 


CHAPTER    XVI. 

HUSBAND    AND    WIFE. 

Rule  66. — A  wife  can  not   during   coverture  be 
sued  alone,  {a) 

Exception  i. — Where  the  husband  is  civilly  dead.  (^) 

Exception  2. — Where  the  husband  is  legally  presumed  to  be 
dead,  {c) 

Exception  3. — Where  a  wife  has  a  judicial  separation  or  pro- 
tection order  under  20  &  21  Vict.  c.  85,  ss.  26  and  21.  (d) 

Exception  4. — Where  the  husband  is  an  alien  enemy. 

A  wife  can  not,  as  before  pointed  out,  (<?)  sue  alone  on 
the  ground  that  her  husband  is  an  alien  enemy ;  but  she 
may  at  any  rate,  under  some  circumstances,  be  sued  alone 
on  the  ground  that  her  husband  is  an  alien  enemy. 

Thus,  where  the  husband  is  an  alien  who  has  deserted 
this  kingdom,  leaving  his  wife  to  act  here  as  a  feme  sole 
she  may,  it  would  seem,  be  charged  in  an  action  against 
her  alone,  on  contracts  made  by  her  after  such  desertion 
(/)  though  it  is  doubtful  whether  the  doctrine  that 
the  wife  of  an  alien  enemy  can  be  sued  alone  must    [297] 
not  be  confined  to  cases  in  which  the  husband  has 
never  been  in  this  kingdom.  { g) 

(a)  .See  Rule  29  for  explanation. 
(b')  See  Rule  29,  Exception  I. 

(f)  See  Rule  29,  Exception  2. 
(</)  Ibid.,  Exception  3. 

(e)  See  ante. 

\f)  I  Selwyn,  N.  P.,  131I1  ed.,  240;  Walfonl  v.  Duchesse  de  Pienne,  2  Esp. 
554  ;  Francks  v.  Duchesse  de  I'ienne,  2  Esp.  N.  P.  C.  587. 

(g)  Put  see  Kay  v.  Duchesse  de  Pienne,  3  Cam]).  123,  where  I.oid  El.l.KN- 
BORfiijO''  confines  the  dcjctrine    to    the  cane  where  I  he  husband  has  never  been 


3i6  PARTJHS     TO    ACTIONS. 

SUBORDINATE   RULE. 

A  wife  can  not  be  sued  by  her  husband.  (A) 

Rule  67. — A  husband  and  wife  must  be  fv^'d 
jointly  in  two  cases,  sc, 

1.  On  contracts  made  by  the  wife  before  mim- 
riage. 

2.  On  contracts  on  which  a  claim  is  made  against 
the  wife  as  executrix  or  administratrix.  {{) 

The  remarks  as  to  the  cases  in  which  a  husband  and 
wife  must  sue  jointly,  {J)  apply,  mutatis  mutandis,  to  the 
cases  in  which  they  must  be  sued  jointly. 

A  woman  does  not,  in  consequence  of  her  marriage, 
cease  to  be  liable  on  her  contracts  made  before  marriage. 
She  must,  however,  be  sued  on  them  jointly  with  her 
husband.  It  should,  however,  be  remarked  that,  as 
regards  her  liability  to  be  sued,  bills  of  exchange  stand 
on  the  same  footing  as  other  contracts.  Hence,  though 
a  husband  can  sue  alone  on  a  bill  of  exchange  given  to 
his  wife  before  marriage,  he  can  not  be  sued  alone  in 
respect  of  a  bill  on  which  she  has  become  liable  before 
marriage.  It  is,  further,  never  the  case  that  an  action 
can  be  brought  at  choice  either  against  the  husband  alone, 
or  against  the  husband  and  wife  jointl}^  In  other  words, 
there   are    no    cases,   as    regards    actions    against    hus- 

in  this  kingdom.  See  I  Selwyn,  N.  P.,  13th  eil.,  240.  Compare  Marsh  v. 
Hutchinson,  2  B.  &  P.  226;  De  Gaillon  v.  L'Aigle,  i  13.  &  P.  354  ;  Boggett  v. 
Friar,  11  East,  301  ;  Marshall  v.  Rutton,  8  T.  R.  545.  But  now  it  is  provided 
by  the  Married  Woman's  Property  Act,  1870  (33  &  34  Vict.  c.  93),  sect.  12,  that 
"  a  husband  shall  not  by  reason  of  any  marriage  which  shall  take  place  after  this 
Act  has  come  into  operation,  be  liable  for  the  debts  of  his  wife  contracted  be- 
fore marriage,  but  the  wife  shall  be  liable  to  be  sued  for,  and  any  prof)erty 
belonging  to  her  for  her  separate  use  shall  be  liable  to  satisfy  such  debts,  as  if 
she  had  continued  unmarried."  The  effect  seems  to  he,  that  a  woman  married 
tfter  the  passing  of  the  Act,  9th  August,  1870,  is  liable  to  be  sued  for  debts  con- 
tracted before  marriage  as  if  she  were  a  feme  sole. 

{h)  See  ante. 

(t)  Compare  Rule  30. 

(/)  See  ante. 


HUSBAND    AND     WIFE.  317 

oand  and  wife,  corresponding  to  those  in  which  an    [298I 
action   ma}^    be   brought   either    by   the    husband 
alone,  or  by  the  husband  and  wife  jointly. 

An  executrix  is  liable  in  that  character  although 
married,  but  she  must  be  sued  together  with  her  hus- 
band, {k) 

Effect  of  death.— T\\Q  effect  of  death,  as  regards  actions 
on  contracts  made  with  the  wife  before  marriage,  is  as 
follows:  (/) 

If  the  husband  dies  before  action  brought,  the  right  of 
action,  as  a  general  rule,  survives  against  the  widow,  {m) 
She  can  not,  however,  be  sued  on  contracts  made  with 
her  before  marriage  if  her  husband  has  become  bankrupt 
during  her  coverture,  since  the  bankruptcy  of  the  husband 
discharges  the  wi%  from  liability  on  her  contracts.  [71) 

If  the  wife  dies  before  action,  the  right  of  action  sur- 
vives against  her  administrator.  {0) 

The  same  results  seem  to  follow  from  the  death  of 
either  party,  after  action  brought,  but  before  judgment 
recovered.  If  the  wife  dies  afteraction  brought,  the  action 
abates;  but  the  death  of  the  husband  is  not  material, 
since  plaintiff  may,  on  suggesting  such  death  upon  the 
record,  proceed  in  the  action  against  the  wife.  (/) 

If  the  husband  dies  after  judgment  recovered,  the  lia- 
bility on  the  judgment  remains  against  the  wife.     If 
the  wife  dies  after  judgment  recovered,  the  husband    [299J 
remains  liable  on  the  judgment  as  for  a  debt  of  his 
own.  {q) 

{k)  BuUen,  Pleadings,  3r(l  ed.,  156. 

(/)  The  general  principle  to  be  borne  in  mind  is,  that  a  husband  is  not  lia 
ble  for  his  wife's  debts  contracted  before  marriage,  provided  judgment  be  no' 
recovered  for  them  during  coverture  ;  but  that  he  is  liable  on  judgments 
obtained  against  him  and  his  wife  on  account  of  contracts  made  by  her  before 
marriage.  Bacon.  Abr.,  Baron  and  Feme.  F.  ;  Woodman  v.  Chapman,  i 
Camp.  188;  2  Williams,  Executors,  6th  eel.,  1633  ;  Roper,  Hub,band  and  Wife, 
2nd  ed.,  75. 

im)  J5ullen,  Pleadings.  3rd  ed..  171. 

(w)  Miichin.son  v.  liewGon,  7  T.  R.  348.350;  Woodman  v.  Chapman,  1 
Camp.  189;  Broom,  Parties,  2nd  ed.,  s.  223. 

(<?)  Bullen,  Pleadings,  3rd  ed.,  171. 

(/)  Lush,  Practice,  3rd  ed.,  102. 

(q)  2  Roper,  Husband  and  Wife,  2nd  ed„  105. 


3i8  PARTIES     TO     ACTIONS. 

The  cfTect  of  death  as  reganls  actions  on  contracts  on 
wliich  the  wife  is  charo;ed  as  executrix,  ike,  is  as  follows: 
on  death  of  the  husband  the  right  of  action  survives 
against  the  widow.  On  death  of  the  wife,  the  right  of 
action  survives  against  the  representative  of  the  testator 
or  intestate. 

Effect  of  divorce. — Divorce  releases  a  husband  from 
liability  to  be  sued  jointly  with  his  former  wife,  on  con- 
tracts made  by  her  before  coverture,  if)  A  husband  is 
(it  is  conceived)  liable,  even  after  divorce,  on  judgments 
recovered  against  himself  and  his  wife. 

Set-off. — In  an  action  against  a  husband  and  wife  for 
debts  due  from  the  Avife  before  marriage,  debts  due  to 
her  before  marriage  can  be  set-off,  and  debts  due  to  her 
husband  can  not  be  set-off.  It  would  seem  that  debts 
due  to  the  husband  and  wife  can  be  set-off. 


Rule  68. — In  all  actions  brought  to  charge  a 
husband  on  contracts  made  by  his  v^ife  during  cover- 
ture, the  husband  must  be  sued  alone,  {s) 

A  wife  can  not  contract  during  coverture  so  as  to 
charge  herself.  (/)  She  contracts,  if  at  all,  as  agent  of  her 
husband.  His  liability  depends  upon  the  authority  of  his 
wife  to  pledge  his  credit,  which  must  be  proved   by  the 

plaintiff,  iii) 
[300]  A  utJiority  of  wife  to  bind  Imsband. — The  authority 

of  a  wife  to  pledge  her  husband's  credit  depends 
(with  one  exception)  on  the  principles  which  govern  the 
relation  of  principal  and  agent,  {x)     The  question  to  be 

{>■)  See  Capel  v.  Powell,  34  L.  J.  16S,  C.  P.  ;  17  C.  B.,  N.  S.,  743-  This 
case  refers  to  torts  committed  by  a  wife  during  coverture  ;  tut  the  principle 
of  it  seems  to  apply  to  contracts  made  by  her  before  coverture. 

{s)  Leake,  Contracts,  234  ;  Manby  v.  Scott,  2  Smith,  L.  C,  f)th  ed.,  396  • 
France  v.  White,  i  NL  &  G.  731. 

(t)  Except,  of  course,  in  the  cases  enumerated  as  exceptions  to  Rule  65  ; 
France  v.  White,  i  AL  &  G.  731. 

(m)  Bulltn,  Pleadings,  3rd  ed.,  172;  Manby  v.  Scott,  2  Smith,  L.  C,  6Ul 
ed.,  396,  and  fallowing. 

(x)  C'lapter  XIL 


HUSBAND    AND     WIFE.  319 

settled  is,  in  all  cases,  whether  the  wife  has  the  husband's 
authority  to  make  the  contract  on  which  the  action  is 
brought.  If  she  has  express  authority,  or  if  her  husband 
has  ratified  {y)  2i  contract  made  by  her,  no  difficulty  can 
exist.  Doubt  can  arise  only  when  the  authority  relied 
upon  is  implied  authority,  {z) 

A  man's  wife,  or  a  woman  represented  by  him  to  be 
his  wife,  is  prima  facie  presumed  to  have  authority  to 
make  contracts  such  as  a  wife  in  her  position  of  life 
usually  makes  ;  i.  e.,  contracts  for  articles  suitable  to  that 
station  which  he  permits  her  to  assume,  (a)  The  question 
whether  a  wife  has  authority  to  make  a  particular  con- 
tract, e.  g.,  to  buy  clothes,  jewelry,  &c.,  is  a  question  of 
fact  for  the  jury,  and  thus,  "  where  a  plaintiff  seeks  tu 
charge  a  husband  on  a  contract  made  by  his  wife,  the 
question  is,  whether  the  wife  had  his  authority  express  or 
implied  to  make  the  contract ;  ...  if  there  be  ex-' 
press  authority,  thei-e  is  no  room  for  doubt ;  and  if  the 
authority  is  to  be  implied,  the  presumptions  which  may 
be  advanced  on  one  side  may  be  rebutted  on  the  other  ; 
and  although  there  is  a  presumption  that  a  woman  living 
with  a  man,  and  represented  by  him  to  be  his  wife,  has 
his  authority  to  bind  him  by  her  contracts  for  articles 
suitable  to  that  station  which  he  permits  her  to 
assume,  still  the  presumption  is  always  liable  to  be  [301] 
rebutted."  {h)  This  authority  is  so  little  connected 
with  the  relation  of  husband  and  wife,  that,  "  if  a  man 
allow  a  woman  to  live  with  him,  and  pass  for  his  wife,  he 
will  be  liable  for  necessaries  furnished  to  her  even  by 
one  who  was  aware  of  the  real  nature  of  the  cohabita- 
tion." {c) 

{)')  Montngue  v.  Benedict,  3  B.  &  C.  631;  2SniitIi,  I-.  C,  (i\\\  cd.,  429  ; 
.Seaton  v.  Benedict,  5  Bing.  28  ;  2  Smith,  L.  C,  61I1  ed.,  13  ;  Wailhman  y. 
Wakefield,  i  Camp.  120;    Leake,  Contracts,  246,  247. 

(2)  See  Tolly  v.  Rees,  33  L.  J.  179,  C.  P.,  judgment  of  EiU.K,  C.  J. 

(a)  Manby  v.  Scott,  2  Smith,  L.  C.  6th  I'd.,  441  ;  Montague  v.  Benedict 
Ibid,,  429;  Jolly  V.  Rees,  33  L.  J.  177,  C.  P.;  15  C.  li.,  N.  S.,  62S  ;  Ether 
ington  V.  Parrot,  I  Salk.  iiS;  2  Smith,  I..  C,  6th  ed.,  441,  Watson  v. 
Threlkeld,  2  Esp.  637. 

(/>)  Jolly  V.  Rees,  33  L.  J.  179,  C.  P.,  judgment  of  Erle,  C.  J. 

i^c)  2  Smith,  L.  C,  6th  ed.,  441 


320  PARTIES     TO    ACTIONS. 

It  may  be  considered  an  open  question,  whether  the 
withdrawal  of  authority  by  a  husband  from  his  wife,  with- 
out the  knowledge  of  the  person  dealing  with  her,  frees 
the  husband  from  liability  to  such  person.  According  to 
the  latest  case  on  the  subject,  {d)  such  private  withdrawal 
of  authority  relieves  the  husband  from  responsibility.  If 
such  be  the  law,  a  private  revocation  of  authority  has,  it 
would  seem,  in  the  case  of  a  husband  and  wife,  an  effect 
beyond  that  which  it  would  have  in  the  case  of  an  ordi- 
nary principal  and  agent,  {e) 

Where  a  wife  lives  apart  from  her  husband,  she  has  no 
presumptive  authority  to  bind  her  husband  ;  but  in  one 
case  (the  exception  before  referred  to)  (/)  she  possesses 
an  authority  to  bind  him,  which  appears  to  result  from 
the  relation  of  the  husband  and  wife.  This  case  is  that  of 
a  married  woman  who,  not  having  an  adequate  mainte- 
nance, {g)  lives  apart  from  her  husband,  either  with  his 
consent,  (h)  or  under  compulsion  to  separate  from  him  on 
account  of  his  misconduct.  Under  these  circumstances 
she  has  an  implied  authority,  which  can  not  be  rebutted 
(or,  in  other  words,  a  right),  to  bind  her  husband  by  con- 
tracts for  necessaries,  {i)  unless  she  is  living  in  adul- 
[302]  tery.  {k)  A  tradesman,  or  other  person,  who  trusts 
a  wife  living  apart  from  her  husband,  can  not  treat 
the  husband  as  liable  to  pay  for  goods  supplied  for  her 
unless  the  circumstances  of  the  case  are  such  as  to  give 
her  a  right  to  pledge  her  husband's  credit.  The  trades- 
man trusts  her  at  his  own  risk,  and  if  the  circumstances 
are  not  such  as  to  give  her  authority  (if,  for  example,  she 
is  living  in  adultery,  or  receives  an  adequate  allowance). 


id)  Jolly  V.  Ress,  33  L.  J.  177,  C.  P.  ;  15  C.  B.,  N.  S.,  628.  Compare 
Ryan  v,  Nolan,  Irish  Rep.,  3,  C.  P.  325,  judgment  of  the  court. 

(e)  See  judgment  of  Byles,  J.,  who  dissented  from  the  rest  of  the  court  in 
Tolly  V.  Rees,  33  L.  J.  181,  C.  P. 

(/)  See  ante. 

{g)  Ozard  v.  Darnford,  i  Selwyn,  N.  P.,  13th  ed.,  229. 

[h)  Mizen  v.  Pick,  3  M.  &  W.  481 ;  Biffin  v.  Bignell,  31  L.  J.,  189,  Ex.,  7 
H.  &  N.  877. 

{i)  Bullen,  Pleadings,  3d  ed.,  172,  173. 

(L-)  Atkyns  v.  Pearce,  2  C.  B.,  N.  S.,  763  ;  26  L.  J.  252,  C.  P.  Cooper  v 
Lloyd.  6  C.  B.,  N.  S.,  519  ;  Knox  v.  Bushell,  3  C.  R.,  N.  S.,  334- 


HUSBAND    AND     WIFE.  321 

then  the  husband  is  not  bound,  even  though  the  creditor 
did  not  know  these  facts.  (/) 

What  are  necessaries? — The  articles  which  can  be 
treated  as  necessaries  when  supplied  to  a  wife  living  apart 
from  her  husband,  must  be  not  only  suitable  in  themselves 
to  her  position,  but  also  indispensable,  because  not  sup- 
plied from  other  sources,  and  indispensable  without  the 
fault  or  waste  of  the  wife,  {in) 

The  term  has,  however,  been  given  a  considerable 
latitude  of  meaning.  "  Furniture  for  a  house  may  be 
necessary  for  a  wife  in  a  station  of  life  requiring  her  to 
live  in  a  furnished  house.  (;z)  Where  it  became  necessary 
for  a  wife  to  exhibit  articles  of  the  peace  against  her 
husband,  it  was  h«ld  that  he  was  liable  for  the  costs  of  an 
attorney  employed  by  her  on  that  occasion,  {d)  and  that 
an  allowance  made  to  her  for  maintenance  could  not  be 
considered  as  applicable  to  that  purpose.  (/)  The  costs 
of  a  proctor  {q)  employed  by  a  wife  in  prosecuting 
a  suit  against  her  husband  for  a  divorce  on  the  [303] 
ground  of  cruelty,  may  be  recovered  as  a  necessary 
if  there  was  reasonable  cause  for  the  suit."  (r)  The  legal 
expenses  incurred  by  a  deserted  wife  preliminary  and 
incidental  to  a  suit  for  restitution  of  conjugal  rights  ;  {s) 
in  obtaining  counsel's  opinion  on  the  effect  of  an  ante- 
nuptial agreement  for  a  settlement ;  {f)  in  obtaining  pro- 
fessional advice  as  to  the  mode  of  dealing  with  trades- 
people who  were  pressing  for  payment,  and  of  preventing 


(/)  Biffin  V.  Bignell,  31  L.  J.  189,  C.  P. ;  7  H.  &  N.  877. 

(;«)  Compare  the  meaning  of  tlie  word  "necessaries"  when  used  with  re- 
gard to  the  contracts  of  an  infant,  and  especially  the  question  whether  things 
can  be  necessary  for  an  infant  with  which  he  is  already  supplied,  ante.  Ryder 
V.  Womhwell,  L.  R.  4,  Exch.  32  (Ex.  Ch.)  ;  Jolly  v,  Rees,  33  L.  J.  180,  C.  P., 
judgment  of  Byles,  J. 

(n)  Hunt  V.  De  Blaquiere,  5  Bing.  550. 
(p)  Sheplierd  v.  Mackoul,  3  Camp.  326. 

(  p  \  Turner  v.  Rookes,  10  A.  &  E.  47. 

\q)  Brown  v.  Ackroyd,  5  E.  &  B.  819  ;  25  L.  J.  193.  Q.  B.  See  Grindell 
▼.  Godmond,  5  A.  &  E.  755. 

(r)  Leake,  Contracts,  246. 

(j)  Wil.on  V.  Ford.  L.  R.  3,  Exch.  63. 

(/)  Ibid. 

21 


0-- 


PARTIES     TO    ACTIONS. 


a  distress,  (//)  have  been  all  held  necessaries  for  which  a 
wife  had  authority  to  pledge  the  credit  of  her  husband. 
Where,  again,  a  wife  lived  separate  from  her  husband 
for  reasons  which  justilied  her  in  doing  so,  and  her  child, 
under  seven  years  of  age,  was  living  with  her  against  her 
husband's  will,  an  order  of  the  Master  of  the  Rolls  having 
been  made  under  23  Vict.  cap.  54,  giving  the  wife  the 
custody  of  the  child,  and  the  wife  had  no  adequate  means 
of  support,  it  was  held  by  the  majority  of  the  Queen's 
Bench,  that  reasonable  expenses  for  the  child  were  neces- 
saries for  the  wife,  for  which  she  might  pledge  her  hus- 
band's credit." 

{tt)  Bazeley  v.  Forder,  L.  R   3,  Q.  B.  559;  37  L.  J.  237,  Q.  B. 


I.  If  the  wife  has  been  abandoned 
by  her  husband  without  cause,  he 
may  be  sued  for  necessaries  sup- 
phed  to  her.  Morrison  v.  Holt,  42 
N.  H.  4.79;  Wing  V.  Hurlburt,  15 
Vt.  613  ;  CatUn  v,  Martin,  69  N.  Y- 
395  ;  Walker  v.  Simpson,  7  Watts 
&  S.  83  ;  Biddle  v.  Frazier,  3  Houst. 
262;  Dow  V.  Eyster,  75  111.  256; 
Pearson  v.  Darrington,  32  Ala.  242. 
And  so  if  money  be  furnished  to 
the  wife  so  deserted  and  she  spend 
it  for  necessaries.  Kenyon  v.  Far- 
ris,  47  Conn.  514;  but  if  the  hus- 
band is  willing  and  able  to  provide, 
he  is  not  liable  for  necessaries  fur- 
nished her  against  his  request,  even 
during  an  action  by  her  for  divorce. 
Catlin  V.  Martin,  69  N.  Y.  395  ;  nor 
is  he  liable  for  services  rendered 
her  by  her  attorney  in  a  divorce 
suit;  Morrison  v.  Holt,  42  N.  H. 
479;  Shelton  v.  Pendleton,  18  Conn. 
421  ;  Dow  V.  Eyster,  79  111.  256; 
Williams  v.  Munroe,  18  B.  Mon. 
516.  Contra,  Porter  v.  Briggs,  38 
Iowa,  167  ;  even  though  she  be  suc- 


cessful; Ray  V.  Alden,  50  N.  H.  83; 
but  a  husband  has  been  held  liable 
for  the  fees  of  her  attorneys  em- 
ployed to  defend  her  from  a  prose- 
cution by  her  husband  to  compel 
her  to  keep  the  peace.  Warner  v. 
Heiden,  28  Wis.  517  ;  but  see  Ray 
v.  Alden,  50  N.  H.  83  ;  Wren  v. 
Hurlburt,  1 5  Vt.  607  ;  Coffin  v.  Dun- 
ham, 8  Cush.  404;  Shelton  v.  Pen- 
dleton, 18  Conn.  417. 

A  husband  is  not  liable  for  the 
rent  of  a  pew  in  a  church  as  a 
necessary  for  his  wife.  St.  John's 
Parish  v.  Bronson,  40  Conn.  75; 
nor  for  dreams  and  revelations  or 
visions  of  a  person  in  a  mesmeric 
sleep.  Carter  v.  Howard,  39  Vt. 
106  ;  see  Sutler  v.  Martin,  50  Ga, 
242. 

As  to  what  the  husband  will  be 
held  liable  for,  generally,  as  neces- 
see  Furlong  v.  Hysom,  35  Me.  333  ; 
Woolford  v.  Burns,  43  Vt.  330; 
Stevens  v.  Story,  Id.  327 ;  Wood 
V.  O'Kelley,  8  Cush.  406;  Knowles 
V.  Hull,  99   Mass.  562  ;   Eames  v. 


HUSBAND    AND     WIFE.  323 

Effect  of  death. — On  the  death  of  a  husband,  his  execu- 
tors become  liable  on  the  contracts  of  his  wife  made  dur- 
ing coverture,  on  which  he  himself  was  liable;  thus, 
generally  speaking,  the  executors  of  a  husband  are  liable 
for  the  debts  of  his  wife  contracted  after  marriage. 

From  the  rule,  however,  that  an  agent's  authority  ex- 
pires on  the  death  of  his  principal,  it  results  that  if  a 
wife  enters  into  contracts  of  a  character  to  bind  her  hus- 
band, believing  him  to  be  alive,  but  in  reality  after  his 
death,  neither  the  wife  herself  nor  the  husband's  execu- 
tors, can  be  made  in  any  way  legally  liable  in  respect  of 
such  contracts.  The  widow  can  not  be  made  liable,  be- 
cause, having  originally  had,  before  she  knew  of 
her  husband's  death,  full  authority  to  contract,  she  [304] 
intended  to  contract  as  an  agent  for  him,  and  did 
not  make  herself  liable.  Nor  can  she  be  treated  as  hav- 
ing fraudulently  represented  that  she  had  an  authority 
which  she  had  not,  or  as  having  impliedly  warranted  that 
the  authority  under  which  she  intended  to  act  actually 
existed,  {x)  The  executors  can  not  be  made  liable, 
because  the  contract  was  made  after  the  death  of  the  tes- 
tator, (j) 

After  divorce  the  husband  retains  the  liability  which 
he  had  incurred  before  the  divorce  on  contracts  made  by 
his  wife  during  coverture. 

ix)  Smoat  V.  Ilhery,  loM.  «S:  W.  r  ;  12  L.  J-  357,  Ex. 

(  V)  Blades  V.  Free,  9   B.  &   C.    167  ;  2   Williams,  Executors,  6th   ed.,  1633 
Compare  2  Smith,  L.  C,  6ih  ed.,  456. 

Sweetzer,  loi  Mass.  78  ;    Johnston  rectly  to  the  wife,   a  husband   is 

V.  Allen,  39  How.  Pr.  506;  Walker  liable  for  necessary  medical  attend- 

V.  Simpson.  7  Watts  &  S.  83;  Hultz  ance   to  his  wife.     Carter  v.  How- 

V.  Gibbs,  66  Pa.  St.  36;  Anderson  ard,  39  Vt.  106. 
V.  Smith,  33  Md.  465  ;    Mulvey  v.         A  son-in-law  is  liable  for  neces- 

State,    43    Ala.    316;     Bonney    v.  saries  furnished  to  his  wife  by  his 

Reardin,  6  Bush,  34;  Day  V.  Wams-  father-in-law,   though    there   is   no 

l^y.  33  J"d.  145;  Franklin  v.  Fos-  implied   promise  to  pay  for  them, 

ter,  20  Mich.  75.  Biddle  v.  Frazicr,  3  Houst.  258. 
Unless  the  credit  was  given  di- 


324 


PARTIES     TO    ACTIONS. 


Rule  69. — The  following  arc  the  results  of  enors 
m  joinder  of  parties  in  actions  against  husband  or 
wife  :— ' 


I.  I.  The  husband  cannot  be 
sued  alone  for  the  debt  of  his  wife 
contracted  before  marriage,  and 
judgment  against  him  will  be  re- 
versed. Angel  V.  Felton,  8  Johns. 
149;  Gage  V.  Reed,  15  Johns.  403  ; 
Rennecker  v.  Scott,  4  G.  Greene, 
185. 

Where  the  husband  was  sued 
alone  in  partition  of  lands  in  which 
his  wife  claimed  a  homestead  in- 
terest, and  on  demurrer  to  the  com- 
plaint, on  motion,  the  wife  was 
brought  in  by  supplemental  com- 
plaint. De  Uprey  v.  De  Uprey,  27 
Cal.  329. 

II.  If  a  wife  is  a  necessary  party 
and  sued  alone  when  the  husband 
should  be  joined,  she  may  demur 
if  the  objection  appear  on  the  face 
of  the  bill,  or  she  make  the  objec- 
tion by  plea  or  answer  ;  in  either 
case  the  plaintiff  must  amend  by 
making  the  husband  a  party. 
Gardner  v.  Moore,  2  Edw.  (N.  Y.) 

313- 

The  grantee  of  the  husband  filed 
a  bill  for  partition  against  the  wife 
alleging  the  lands  to  have  been 
held  in  common  by  husband  and 
wife.  A  demurrer  to  the  bill  was 
allowed  for  the  non-joinder  of  the 
husband.  McDermott  v.  French, 
15  N.J.  L.  78. 

Where  a  wife  was  joined  as  party 
defendant  on  a  promissory  note, 
the  objection  that  her  husband  was 
not  joined  with  her  could  only  be 
taken  advantage  of  by  plea  in 
abatement. 


Judgment  was  reversed  where  the 
husband  should  have  been  joined 
with  the  wife,  sued  as  executrix 
with  others.  Ludlow  v.  Marsh,  3 
N.  J.  L.  983. 

Where  a  wife  was  sued  to  obtain 
payment  of  a  debt  contracted  prior 
to  marriage  from  property  fraudu- 
lently conveyed  by  her  while  sole 
plaintiff  was  compelled  to  amend 
his  bill  by  joining  the  husband, 
though  he  was  a  certified  bankrupt. 
Hamlin  v.  Bridge,  24  Me.  145. 

III.  Where  a  husband  and  wife 
were  joined  in  a  suit  for  a  debt  con- 
tracted during  coverture,  she  being 
improperly  joined,  the  declaration 
was  held  bad  on  demurrer,  Leslie 
V.  Harlow,  18  N.  H.  518.  The 
judgment  was  reversed  where  the 
wife  was  joined  in  ejectment  against 
the  husband  because  she  lived  with 
him  on  the  property.  Meegan  v. 
Gunsollis,  19  Mo.  417  ;  so  in  Claflin 
V.  Van  Wagoner,  32  Mo.  252. 

On  improper  joinder  of  wife 
with  husband  on  their  joint  promis- 
sory note,  plaintiff  may  amend  by 
discontinuing  as  to  her  and  paying 
costs.  Harrington  v.  Thompson, 
9  Gray,  65. 

Where  husband  and  wife  were 
sued  for  a  conversion  the  jury 
should  have  been  instructed  to 
acquit  as  to  the  wife  for  misjoinder. 
Marshall  v.  Oakes,  51  Me.  308. 
Misjoinder  of  a  feme  covert  as  de- 
fendant cannot  be  cured  by  enter- 
ing a  nolle  prosequi  as  to  the  wife. 

Judgment    was    reversed    where 


HUSBAND    AND     WIFE.  325 

1.  If  a  husband  is  sued  alone  where  his  wife  must 
be  joined,  the  error  is  fatal. 

2.  If  a  wife  is  sued  alone,  where  she  must  be 
joined,  the  only  result  is  to  expose  the  plaintiff  to  a 
plea  in  abatement. 

3.  If  a  husband  is  sued  jointly  with  his  wife  where 
he  ought  to  be  sued  alone,  the  error  is  fatal  unless 
amended. 

I.  If  a  husband  is  sued  alone,  &-€. — If  a  husband  is 
sued  alone  where  his  wife  ought  to  be  joined,  e.  g.,  on 
contracts  made  with  his  wife  before  marriage,  {s)  the 
error  is  fatal ;  for  if  it  appears  on  the  record,  it  gives  rise 
to  a  demurrer,  &c.  ;  and  if  it  appears  on  the  trial,  it  gives 
rise  to  a  nonsuit  or  adverse  verdict.  The  defend- 
ant may  plead  the  general  issue,  e.  g.,  never  in-  [305] 
debted,  and  the  error  can  not  be  amended  at  the 
trial  by  adding  the  name  of  the  wife,  {a) 

{z)  Rule  69. 

\a)  Garrard  v.  Giubilei.  ii  C.  B.,  N.  S.,  6i6  ;  31  L.  J.  131,  C.  P..  esp.  judg- 
ment of  Williams,  J.,  31  L.  J.  133.  C.  P.  ;  13  C.  B.,  N.  S.,  832  ;  31  L.  J.  270 
C.  P.  (Ex.  Ch.). 

husband  and  wife  were  joined  in  judgment  for  a  debt  contracted  by 
an  action  for  family  supplies,  though  her  could  be  rendered  against  her 
the  judgment  was  had  by  default,  personally.  Her  separate  estate 
the  wife  not  being  properly  joined,  could,  in  equity,  be  subjected  to 
Childress  v.  Mann,  33  Ala.  206.  the  payment  of  the  debt.  The 
Where  husband  and  wife  were  question  in  this  case  is  whether  or 
improperly  joined  in  action  on  their  not  the  common  law  is  so  far 
joint  promissory  note  which  was  changed  by  the  code  that  a  married 
void  as  to  her,  and  a  non  pros,  as  woman  can  bind  herself  by  a  con- 
to  her  would  strictly  render  plain-  tract  for  the  purchase  of  land,  so 
tiff  non  suit,  and  the  husband  hav-  that  she  may  be  proceeded  against 
ing  no  defence  to  a  new  action,  at  law  for  the  debt.  Section  2131 
plaintiff  was  allowed  to  amend  by  says:  'Husband  and  wife  must  be 
striking  out  the  wife's  name.  Hen-  joined,  either  as  plaintiffs  or  dc- 
nessy  v.  Ryan,  7  R   I.  548.  fendants,  when  the  wife  has  an  in- 

In   Gibson   v.   Marquis.  29  Ala.  terest  in  the  subject  matter  of  the 

668.  Walker.  J.,  very  clearly  states  suit,  unless  the  suit  relate  to  her 

the   rule    and    procedure,   saying:  separate  estate,  when  she  must  sue 

"  The  contract  of  a  married  woman  or  be  sued  alone.    This  statute  per- 

at  common   law  was  void,  and  no  tains  to  the  remedy  for  and  against 


326  PARTIES     TO    ACTIONS. 

2.  If  aivifc  is  sued  ixlone,&-c. — If  a  wife  is  sued  alone, 
c.  g.,  on  contracts  luaclc  by  her  before  marriage,  a  formal 
error  has  been  committed  ;  for  she  ought  never  to  be  sued 
without  her  husband.  Still,  the  person  sued  is  in  reality- 
liable.  She,  therefore,  can  not  treat  the  error  as  afford- 
ing an  answer  to  the  action,  but  she  may  insist  upon  her 
husband  being  joined  as  defendant.  In  other  words,  she 
may  plead  her  coverture  in  abatement.  She  can  take  no 
other  advantage  of  the  error,  {b) ' 

3.  If  a  husband  is  sued  jointly,  &€. — If  a  husband  and  wife 
are  sued  jointly  where  the  husband  ought  to  be  sued  alone, 
the  error  is  fatal,  unless  amended,  {c)  It  may,  perhaps, 
be  a  question  whether  this  error  can  be  amended.  It  re- 
sembles rather  the  case  of  an  action  against  a  wrong 
defendant  than  that  of  a  simple  misjoinder  of  defend- 
ants, {d) 

ib)  BuUen,  Pleadings,  3rd  ed.,  171  ;  Lovel  v.  Walker,  9  M.  &  W.  299  ; 
Milner  v.  Milnes,  3  T.  R.  627,  631. 

{c)  See  Chapter  XXXIV. 

[d)  If  a  wife  be  sued  alone  in  cases  where  she  ought  not  to  be  joined,  she  is, 
in  efTect,  sued  on  a  contract  on  whkh  she  is  not  liable.  An  action,  therefore, 
against  her  can  not  succeed.  If,  however,  the  defense  is  that  she  is  not  liable, 
necause  at  the  time  of  making  the  contract  she  was  a  married  woman,  her 
coverture  must  be  specially  pleaded.  Bullen,  Pleadings,  3rd  ed.,  598  ;  7  R.  G. 
rf.  T.  53- 

a  feme  covert,  but  does  not,  of  coverture.  We  decide,  therefore,, 
itself,  affect  her  power  to  contract,  that  Mrs.  Marquis,  who  is  and  was. 
So  far  as  it  is  concerned,  the  wife's  when  she  executed  the  note  in  suit, 
capacity  to  bind  herself  by  a  con-  a  feme  sole,  is  not  liable  in  this 
tract  pending  her  coverture  is  un-     action. 

touched  and  reinains  as  at  common  "  The  defect  appears  in  the  com- 
law.  Whether  there  may  not  be  plaint,  and  such  a  defect  thus  ap- 
contracts  which  by  virtue  of  other  pearing  is  available  by  demurrer, 
provisions  of  the  code  could  bind  Under  the  previous  adjudications 
her  even  at  law,  and  upon  which  of  this  court,  the  defence  of  the 
she  might  be  sued  under  section  coverture  of  one  defendant  does 
2131,  we  do  not  undertake  to  decide  not  discharge  the  other,  and  the 
in  this  case.  It  is  certain  that  there  plaintiff  could,  after  judgment  in 
is  no  provision  of  the  code  which  favor  of  the  feme  covert,  on  demur- 
will  admit  of  the  construction  that  rer,  proceed  in  the  suit  against  her 
the  common  law  doctrine  of  the  husband,  who  is  her  co-defendant, 
wife's  incapacity  to  contract,  so  as  *  *  *  The  demurrer  to  the 
to  subject  herself  to  suit  at  law,  is  complaint  should,  therefore,  have 
entirely  abolished,  or  that  she  may  been  taken  by  the  feme  covert  de- 
be  sued  at  law  upon  a  note  given  fendant  alone." 
for  the  purchase  of  land  during  her 


BANKRUPT    AND     TRUSTER. 


CHAPTER   XVII. 

BANKRUPT  AND  TRUSTEE. 

Rule  70.— A  bankrupt  can  not  after  his  discharge 
be  sued  on  contracts  made  before  bankruptcy,  {a) ' 

Bankruptcy  does  not  of  itself  {d)  free  the  bankrupt 
from  UabiUty  on  his  contracts,  {c) 

The  following  contracts  with  the  bankrupt  are  put  an 
end  to  altogether  as  far  as  he  is  concerned,  by  and  from 
the  date  of  the  order  of  adjudication. 

I  St.  Covenants  or  other  contracts  having  relation  to  oner- 
ous property,  which  the  trustee  may  either  adopt  or  dis- 
claim.—\N\\Qt\\Qr  the  rights  and  obligations  under  such 
covenants  or  contracts  are  adopted  or  disclaimed  by  the 
trustee,  the  rights  and  obligations  of  the  bankrupt  cease 
from  the  time  of  his  being  adjudicated  a  bankrupt.  If, 
for  instance,  the  bankrupt  has  a  lease  of  property  under 
which  he  is  bound  to  repair,  the  trustee  may  adopt  the 
lease,  in  which  case  all  liability  for  future  breaches 
of  the  covenant -to  repair,  passes  away  from  the    [307 J 

(a)  Bankruptcy  Act.  1869.  ss.  23,  33,  31.  and  49.  Debts  or  liabilities  con- 
tracted after  the  date  of  the  order  of  adjudication  are  not  provenble  under  the 
bankruptcy,  or  barred  by  the  order  of  discharge.  Bankruptcy  Act,  1869.  ss. 
31,  49. 

(b)  Spencer  v.  Demett.  L.  R.  r,  Ex.  123  ;  Hartley  v.  Occnwood,  5  R.  & 
Aid.  95  ;  Jones  v.  Hill,  L.  R.  5.  Q-  B.  230.  See  Bankrup  cy  Act.  1S69.  s  49. 
by  which  the  discharge  must  be  pleaded. 

(f)  A  bankrupt  sued  at  any  time  after  the  presentation  of  a  bankruptcy 
petition  should  apply  to  the  court  having  jurisdiction  in  bankruptcy  to  restrain 
further  proceedings  ;  and  this  he  may  do  after  the  presentation  of  the  petition 
in  respect  of  an  action  in  progress  at  the  commencement  of  the  bankruptcy. 
The  court  has  discretion  whether  to  stay  such  actions  or  not.  Bankruptcy  Act 
T<i69,  ss.  I J  4. 


328  JWKJ'IJiS     ro     ACTIOxYS. 

bankrupt ;  or  the  trustee  may  disclaim  any  interest  in 
the  property,  in  which  case  also  the  bankrupt  ceases, 
from  the  date  of  the  adjudication,  to  have  any  interest  in 
the  property  or  to  be  liabk^  in  'uiy  way  for  future  breaches 
of  the  covenants,  {d) 

2nd.  Indentures  of  appreniieesliip. — An  indenture  of 
apprenticeship  is  completely  discharged,  at  the  will  either 
of  the  bankrupt  or  the  apprentice,  by  the  order  of  adjudi- 
cation, ie) 

The  g-eneral  principle  as  to  all  other  liabilities  on  con- 
tracts made  by  the  bankrupt  before  bankruptcy,  is  that  if 
the  claims  against  him  ai'e  proveable,  the  order  of  dis- 
charge (/)  (not  the  bankruptcy)  frees  him  from  liability 
for  them.  The  tendency  of  successive  Bankruptcy  Acts 
has  been  so  to  extend  the  number  of  claims  which  are 
made  proveable,  that  it  may  now  be  laid  down  that  (sub 
ject  to  some  few  exceptions  hereafter  enumerated)  all 
claims  against  a  bankrupt  arising  on  contracts  or  prom- 
ises made  by  him  before  '  bankruptcy  are  proveable 
against  his  estate,  and  are,  therefore,  barred  by  his  dis- 
charge, {g) 

{d)  Bankruptcy  Act,  r86g,  s.  23.  As  regards  breaches  committed  before 
the  adjudication,  the  bankrupt's  lial)ility  is  exactly  the  same  as  for  the  breach 
of  any  other  contract  made  by  him  before  bankruptcy. 

(e)  Bankruptcy  Act,  i86g,  s.  33. 

(/)  Ibid.,  s.  49- 

I g)  This  is  the  result  of  the  following  provisions  of  the  Bankruptcy  Act. 
1869,  s.  31 : — 

"Demands,  in  the  nature  of  unliquidated  damages,  ari>ing  otherwise  than 
by  reason  of  a  contract  or  promise  [/.  e.,  demands  arising  from  torts],  shall  not 
be  proveable  in  bankruptcy  ;  and  no  person  having  notice  of  any  act  of  bank- 
rupicy  available  for  adjudication  against  the  bankrupt  shall  prove  for  any 
debt  or  liability  contracted  by  the  bankrupt  subsequently  to  the  date  of  his  so 
having  notice. 

"  Save,  as  aforesaid,  all  debts  and  liabilities,  present  or  future,  certain  or  con- 
tingent, to  which  the  bankrupt  is  subject  at  the  date  of  the  order  of  adjudication, 
or  to  which  he  may  become  subject  during  the  continuance  of  the  bankruptcy, 
by  reason  of  any  obligation  incurred  previously  to  tlie  date  of  the  order  of 
adjudication,  shall  be  deemed  to  be  debts  proveable  in  bankruptcy,  and  may  be 
proved  in  the  prescribed  manner  before  the  trustee  in  the  bankruptcy. 

"  '  Liability  '  shall,  for  the  purposes  of  tliis  Act,  include  any  compensation 
for  work  or  labor  done  ;  any  obligation  or  possibility  of  an  obligation  to  pay 
money  or  money's  worth  on  the  breach  of  any  express  or  implied  covenant, 
COM) 'act,  agreement,   or  undertaking,  whether   such  breach  does   or  does   no» 


BANKRUPT    AND     TRUSTEE.  329 

There  are  some  debts  or  liabilities  which  are  not 
got  rid  of  by  the  order  of  discharge,  and  which,    [308] 
therefore,  constitute  the  exceptions  to  the  general 
rule  under  consideratioti. 

Exception  i. — Debts  or  liabilities  held  not  to  be  proveable 
by  the  Court  of  Bankruptcy.  "'' 

"  Any  person  aggrieved  by  any  estimate  made  by  the 
trustee  may  appeal  to  the  court  having  jurisdiction  in 
bankruptcy,  and  the  court  may,  if  it  think  the  value  of  the 
debt  or  liability  incapable  of  being  fairly  estimated,  make 
an  order  to  that  effect,  and  upon  such  an  order  being 
made,  such  debt  or  liability  shall  for  the  purposes  of  this 
Act,  be  deemed  to  be  a  debt  not  proveable  in  bank- 
ruptcy." {h) 

Exception  2. — Debts  or  liabilities  contracted  after  notice  to 
the  creditor  of  an  act  of  bankruptcy.  (/)  ' 

Exception  3.— Debts  or  liabilities  incurred  by  means  of  fraud 
or  breach  of  trust.  {Ji)  " 

occur,  or  is  or  is  not  likely  to  occur,  or  capable  of  occurring,  before  the  close  of 
the  bankruptcy  ;  and  generally  it  shall  include  any  express  or  implied  engage- 
ment, agreement,  or  undertaking  to  pay,  or  capable  of  resulting  in  the  payment 
of  money,  or  money's  worth,  whether  such  payment  be  as  respects  amount  fixed 
or  unliquidated  ;  as  respects  time  present  or  future,  certain  or  dependent  on  any 
one  contingency,  or  on  two  or  more  contingencies  ;  as  to  mode  of  valuation  capa- 
ble of  being  ascertained  by  fixed  rules,  or  assessable  only  by  a  jury,  or  as  a  matter 
of  opinion." 

(A)  Bankruptcy  Act,  1869,  s.  31.  Compare,  as  to  the  meaning,  under  the 
Bankruptcy  Act,  of  "  dei)t  and  lial>ility,"  sect.  31  and  s.  4- 

A  number  of  claims  were  held  not  proveable  under  former  Acts,  mainly  on 
the  ground  that  their  value  could  not  be  estimated.  It  is  possible  that  many 
claims  decided  not  to  be  proveable  under  the  former  Acts,  may  be  held  to  be. 
as  a  matter  of  fact,  incapable  of  proof  under  the  ])res(.-nt  Act. 

(/•)  Ibid.,  s.  31. 

(i)   Ibid.,  s.  49. 

1.    Here,   after  the  time   of  the  mour  v.  Street,  5  Neb.  93;  Miller  v. 

filing   the  petition.     Henncciuin  v.  Chandler,  29  La.  Ann.  92. 

Clews    77  N.  Y.  429;    Mitchell  v.  2.  Flagg  v.  Fly,  I  Edm.  Sel.  Cas. 

Singleterry,    19   Ohio,    293;    Halli-  206.     Liability  for  money  received 

burton  V.  Carter.  Sfi  Mo.  346 ;  Sey-  as  a  fiduciary  to  be  used  in  a  par- 


330  PARTIES     TO    ACTIONS. 

[309]  Excepiion  4. — Debts  or  liabilities  whereof  the  bank 

rupt  has  obtained  forbearance  by  fraud.  (/)  ' 

Exception  5. — Debts  due  to  the  Crown.  (///) 

Exception  6. — Debts  with  which  the  bankrupt  stands  charged 
for  an  offense  against  a  statute  relating  to  any  branch  of  the 
public  revenue,  or  at  the  suit  of  the  sheriff  or  other  public 
officer  on  a  bail  bond,  entered  into  for  the  appearance  of  any 
person  prosecuted  for  any  such  offense.  (//) 


Rule    71. — An    undischarged    bankrupt   remains 
liable  on  contracts  made  by  him  before   bankruptcy. 

The  mere  bankruptcy  not  being  itself  a  discharge  from 
liabihties,  an  undischarged  bankrupt  is  obviously  up  to 
the  close  of  the  bankruptc}^  still  liable  on  his  contracts, 
though,  as  already  explained,  (o)  he  may  apply  to  the 
court  to  stay  an  action  against  him.' 

(/)  Bankniptcy  Act,  1S69,  s.  49. 
(m)  Ibid. 

(m)  Ibid.    He  may,  however,  be   dischar_c;ed  from    the    last   two    classes  of 
debts  by  the  consent  of  the  Commissioners  of  tlie  Treasury. 
(o)  See  ante. 

ticular  way,  is  not  affected  by  dis-  creditor  having  no  notice  of  the 

charge  in  bankruptcy.   Matteson  v.  bankruptcy   proceedings,   will    not 

Kellogg,  16  111.   547.     Money  col-  be  discharged.  Symonds  v.  Barnes, 

lected  by  an  attorney  for  his  client  59  Mc.   191.     See  contra,  Magoon 

and  wrongfully  detained,  is  not  a  v.  Warfield,  3  Iowa,  293. 
debt  which  would  be  discharged  in         I.  A  judgment  on  a  contract  in- 

bankruptcy.     Heffern  v.  Jayne,  39  duced  by  fraud  is  not  "  created  " 

Ind.   46;    Wolcott    V.    Hodge,    15  by  fraud,  within  the  bankrupt  act. 

Gray,  547.     An  auctioneer  who  has  and  the  recovery  of  such  judgment 

failed  to  pay  over  moneys  received  is  a  waiver  of  the  fraud,  and  a  dis- 

by  him  for  a  city,  is  not  released  by  charge  in  bankruptcy  is  a  waiver  of 

discharge,    nor    are    his    sureties,  the  fraud.     Palmer  v.  Preston,  45 

Jones  V.  Russell,  44  Ga.  460;  Mc-  Vt.  154;  Seuman  v.  Strauss,  84  N. 

Minn  v.  Allen,  67  N.  C.  131;  Cro-  Y.  Sup.  Ct.  6. 

nan  v.  Cutting,  104  Mass.  245.     A        2.  Payson  v.  Dietz,  2  Dili.  504; 

debt  fraudulently   omitted  by  the  Re  Secchi,  10  Blatchf.  29;  Re  Mal- 

bankrupt    from    his    schedule,  the  lory,   i   Sawyer,  88 ;   Davis'  Case, 


BANKRUPT    AND     TRUSTEE.  331 

But  a  bankruptcy,  may  be  closed,  and  yet  under  the 
present  Act  the  bankrupt  may  not  obtain  his  discharge, 
and  thus  may,  even  after  the  proceedings  in  bankruptcy 
are  ended,  remain  an  undischarged  bankrupt,  {p) 

The  result  of  the  Act  seems  to  be,  that  during  [310J 
three  years  after  the  close  of  the  bankruptcy,  no 
claim  depending  on  a  contract  made  before  the  adjudica- 
tion of  bankruptcy  can  be  enforced  against  the  property 
of  the  bankrupt ;  but  it  would  rather  appear  that  there  is 
nothing  to  prevent  a  creditor  from  bringing  an  action 
against  the  bankrupt  in  respect  of  such  claim  during  the 
three  years,  {q) 

(/  )  His  position,  which  is  peculiar,  is  thus  defined  by  the  act : — 

"  Where  a  person^who  has  been  made  bankrupt  has  not  obtained  his  dis- 
charge, then,  from  and  after  the  close  of  the  bankruptcy,  the  following  con- 
sequences shall  ensue  : — 

"  I.  No  portion  of  a  debt  proveable  under  the  bankruptcy,  shall  be  enforced 
against  the  property  of  the  person  so  made  bankrupt  until  the  expiration  of 
three  years  from  the  close  of  the  bankruptcy,  and  during  that  time,  if  he  pay 
to  his  creditors  such  additional  sum  as  will,  with  the  dividend  paid  out  of  his 
property  during  the  bankruptcy,  make  up  ten  shillings  in  the  pound,  he  shall 
be  entitled  to  an  order  of  discharge,  in  the  same  manner  as  if  a  dividend  of  ten 
shillings  in  the  pound  had  originally  been  paid  out  of  his  property. 

"  2.  At  the  expiration  of  a  period  of  three  years  from  the  close  of  the  bank- 
ruptcy, if  the  debtor  n.ade  bankrupt  has  not  obtained  an  order  of  discharge, 
any  balance  remaining  unpaid  in  respect  of  any  debt  proved  in  such  bank- 
ruptcy (but  without  interest  in  the  meantime),  shall  be  deemed  to  be  a  sub- 
sisting debt,  in  the  nature  of  a  judgment  debt,  and,  subject  to  the  rights  of  any 
persons  who  have  become  creditors  of  the  debtor  since  the  close  of  his  bank- 
ruptcy, may  be  enforced  against  any  property  of  the  debtor  with  the  sanction 
of  the  court  which  adjudicated  such  debtor  a  bankrupt,  or  of  the  court  having 
jurisdiction  in  bankruptcy  in  the  place  where  the  property  is  situated,  but  to 
the  extent  only,  and  at  the  time  and  in  manner  directed  by  such  court,  and 
after  giving  such  notice  and  doing  such  acts  as  may  be  prescril^ed  in  tliat  be- 
half." Bankruptcy  Act,  l36g,  s.  54.  The  expression  debt  proveable  under  the 
bankruptcy,  includes,  speaking  generally,  all  liabilities  arising  out  of  any  con- 
tract made  before  the  adjudication  of  bankruptcy.     See  Chapter  XVII. 

{q)  See,  however.  Bankruptcy  Act,  1S69,  s.  12,  compared  with  sect.  54, 

I     Sawyer,    260;     Mainwaring    v.  107;    Smith  v.  Soldier's,  &c.,  Co., 

Koiins.  35  Tex.  171  ;  Re  Campbell,  35  N.  J.  L  60  ;  Fritsch  v.  Van  Mit- 

3  Pittsb.  96  ;  Re  Atkinson,  3  Piltsb.  endorf,  2  Cin.  261  ;  Stone  v.  IJrook- 

424;    and  as  to  the  effect  of  pro-  ville  IJank,  39  Ind.  284;  Stuart  v. 

ceedings   in    bankruptcy   on    suits  Hines,   33   Iowa,   61  ;    Cannon    v. 

pending;    Foster  v.  Wyiie,  60  Me.  Walford,  22  Gralt.  195. 


332  PAKn/iS    TO    .icnoNS. 

After  the  lapse  of  the  three  years,  any  unpaid  balance 
of  debt  proved  under  the  bankruptcy  becomes,  in  case 
the  debtor  has  not  obtained  an  order  of  discharge,  a  judg- 
ment debt,  and  payment  can,  it  is  presumed,  be  enforced 
either  by  execution  or  by  an  action  on  the  judgment. 


Rule  72. — The  trustee  can  be  sued  as  a  trustee 
on  contracts  entered  into  by  him  in  his  character  as 
a  trustee. 

The  rule  under  the  old  Bankruptcy  Acts  was,  that  the 
assignees  of  a  bankrupt  could  not  be  sued  as  assignees  at 
law.  They  did  not  (nor  does  the  trustee)  represent  the 
bankrupt  as  regarding  his  liabihties.  In  other  words, 
they  could  not  be  sued  on  contracts  made  by  the  bank- 
rupt in  the  same  way  in  which  an  executor  can  be 
[311]  sued  on  the  contracts  of  his  testator,  since  the 
mode  in  which  a  creditor  of  a  bankrupt  must  en- 
force his  claim  is  not  by  action  against  the  assignees  or 
trustee,  but  by  proof  against  the  estate. 

The  assignees,  on  the  other  hand,  i^  they  themselves 
entered  into  contracts,  were  personally  liable,  if  at  all.  (r) 
If,  for  instance,  as  they  had  power  to  do,  they  adopted 
contracts  entered  into  by  the  bankrupt,  they  personally 
took  the  liabilities  of  the  contracts,  {s)  and  thus,  on  adopt- 
mg  a  lease  made  to  the  bankrupt,  incurred  the  same 
liabilities  as  any  other  assignees,  and  could  get  rid  of  them 
in  the  same  way  as  other  assignees,  by  assigning  over  the 
lease.  (/) 

The  position  of  the  trustee  under  the  present  Act  is 
apparently  different.  He,  like  the  assignees,  is  in  no 
sense  liable,  and  can  not  be  sued  for  the  breaches  of  con- 
tract of  the  bankrupt ;  but  he  can  enter  into  engagements 
in  his  character  as  a  trustee,  and  such  engagements  will 

(r)  Ridout  v.  Brough,  Cowp.  134  ;  Broom,  Parties,  2nd  ed.,  s.  183. 

(s)  Gibson  v.  Carruthers.  8  M.  &  W.  321. 

{/)  Onslow  V.  Corrie.  2  Madd.  330 ;  Broom,  Parties,  2nd  ed..  s.  230. 


BANKRUPT    AND     TRUSTEE.  333 

bind  succeeding  trustees.  This,  at  least,  seems  U)  be  the 
effect  of  the  following-  enactment : — {u) 

"  The  trustee  of  a  bankrupt  may  sue  and  be  sued  by 

tne  official  name  of  '  the  trustee  of  the  property  of ,  a 

bankrupt,'  inserting  the  name  of  the  bankrupt,  and  by 
that  name  may  hold  property  of  every  description,  make 
contracts,  sue  and  be  sued,  enter  into  any  engagements 
binding  upon  himself  and  his  successors  in  office,  and  do 
all  other  acts  necessary  or  expedient  to  be  done  in  the 
execution  of  his  office." 

It  may  be  inferred  from  this,  that  if  a  trustee  adopts  a 
contract  made  with  the  bankrupt, — e.  g.,  a  lease,  he  and 
his  successors  become  liable  upon  it  as  trustees. 

The  trustee  can,  when  the  bankruptcy  is  closed,  apply 
to  the  Court  for  a  release  ;  {x)  and,  the  order  of  re- 
lease, if  granted,  discharges  him  "from  all  liability  [312] 
in  respect  of  any  act  done  or  default  made  by  him 
in  the  administration  of  the  affairs  of  the  bankrupt,  or 
otherwise  in  relation  to  his  conduct  as  trustee  of  such 
bankrupt ;  but  such  order  may  be  revoked  by  the  Court 
on  proof  that  it  was  obtained  by  fraud."' 

(u)  Bankruptcy  Act,  1869,  s.  83,  cl.  7. 
{x)  See  Bankruptcy  Act,  1869,  ss.  51-53. 

I.  The  assignee  of  the  bankrupt  of  the  assignee  may  sue  thereon  in 

is  the  only  person  to  maintain  an  the  name  of  the  assignee.     Hart  v. 

action  upon  claims  and  demands  Stone,    30    Conn.   97 ;    Wilcox    v. 

due  the  estate,  after  the  estate  has  Toledo,    &c.,    Ry.,  43   Mich.  585  ; 

been  transferred  to  him.  Glenny  v.  Camack  v.   Bisquay,   18  Ala.  286. 

Landdon.  98  U.  S.  20  ;  Rossman  v.  But  a  foreign  assignee  cannot  sue 

McFarland,  9  Ohio  St.  377  ;  Harris  in  the  local  courts  in  his  own  name, 

V.   Cornell,  80  111.   56  ;  Jenkins  v.  to  the  detriment  of  resident  crcdi- 

Greenbaum,  95    111.   18;    Langdon  tors.     Perry  v.  Barry,  i   Cranch  C. 

V.     Thompson.     25      Minn.      511;  C.    204;    Upton    v.    Hubbard,    28 

Wheeler  v.  Wheedon,  9  How.  Pr,  Conn.    284;    Booth    v.    Clark,    17 

299;  and  the  creditor  will  be  ena-  How.  337;    Hoyt  v.  Thompson,  5 

bled  to  sue  in  his  own  name,  even  N.    Y.    332;    Milne   v.   Moreton,  6 

though  the  assignee  fail  to  sue  two  Binn.  359;   Metcalf  v.  Yeaton,  51 

years.     Trimble   v.  Woodhead,   1 1  Me.  200  ;  Smith  v.  Railroad  Co.,  23 

Reporter,  553.  Wis.  270. 

The  purchaser  of  a  chose  in  action 


334  PARTIES     TO    ACTIONS. 


CHAPTER   XVIII. 

EXECUTORS,    ADMINISTRATORS,    AND    HEIRS. 

Rule  73. — The  personal  representatives  {a)  of  a 
deceased  person  (/.  e.,  his  executors  or  administrators) 
{b)  can  be  sued  on  all  contracts  made  with  him 
whether  broken  before  or  after  his  death. 

Executors  or  administrators  represent  the  deceased,  or 
rather,  his  personal  estate,  and  are  liable,  to  the  extent 
of  the  assets  which  have  come  into  their  hands  to  be  ad- 
ministered, upon  all  contracts  made  by  him  for  breaches 
before  or  after  his  death,  ic)  Their  liability  is  the  same, 
whatever  the  form  {d)  or  the  nature  of  the  testator's  or 
mtestate's  contracts  ;  that  is  to  say,  an  executor,  &c.,  i? 
bound,  not  only  by  the  promise  of  the  testator  to  pay  a 
debt,  but  by  his  undertaking  to  perform  any  other  act, — 
e.  g.,\.Q>  give  a  fortune  to  his  daughter,  ic)  to  build  a  house, 
(/)  and  so  forth.  So,  if  M.,  the  testator,  enters  into  a 
contract  with  A.,  that  N.  should  serve  A.  for  a  certain 
time,  and  after  M.'s  death,  N.,  before  the  expiration  of  the 

time,  leaves  A.'s  service,  A.  can  sue  X.,  M.'s  execu 
[314]    tor,  for  the  breach  of  the  agreement,  {g)   So,  where 

A.  had  entered  into  a  contract  with  M.  to  supply 
him  with  a  certain  quantity  of  slate  monthly  at  a  fixed 
price,  and  M.  agreed  to  receive  a  certain  number  of  tons 

(a)  See,  for  distinction  between  real  and  personal  representatives,  Chaptei 
XVII. 

{J})  The  liability  of  an  executor  is,  except  where  the  contrary  is  stated,  the 
6aine  as  that  of  an  administrator,  and  vice  versa. 

(c)  Bullen,  Pk-adings,  3rd  ed.,  154. 

{d)  2  Williams,  Executqrs,  6tli  ed.,  1590-1592. 

(e)  Bacon,  Abr.,  Executors,  P.  2  ;  2  Williams,  Executors,  6th  ed.,  159T. 

(/)  Quick  V.  Ludboirow,  3  Bulst.  30;  Wentworth  v.  Cock,  10  A.  &  E.  4X 

^S)  Williams.   Executors.  6th  ed..  i';o2. 


EXECUTORS  AND  ADMINISTRATORS.      335 

until  a  date  fixed  upon  in  the  agreement,  and  died  before 
that  date,  it  was  held  that  X.,  his  personal  representative, 
who  refused  to  receive  the  slate,  was  liable  to  an  action 
at  the  suit  of  A.,  on  the  ground  that  he  was  bound  to  pay 
damages  out  of  the  assets  if  he  did  not  take  the  contract 
upon  himself,  {h) 

Though  an  executor  is  at  common  law  (/)  not  liable 
for  the  torts  of  his  testator,  he  can  often  be  sued  for  what 
is  in  reality  a  tort  in  the  form  of  an  action  for  breach  of 
contract.  At  common  law,  for  example,  trover  does  not 
lie  against  an  executor  for  a  conversion  by  his  testator ; 
but  if  the  testator  converts  and  sells  goods  of  anothei 
person,  the  owner  can  bring  against  the  executor  ar_ 
action  for  money  received.  So,  if  one  man  take  the  horse 
of  another,  and  bring  him  back  again,  his  executor  can 
not  (independently  of  statute)  be  sued  for  the  trespass, 
though  the  wrong-doer  might  have  been  so  sued  ;  but  an 
action  can  be  brought  against  the  executor  for  the  use 
and  hire  of  the  horse  ;  and  though  the  executor  of  an  inn- 
keeper can  not  be  sued  in  tort  (unless  under  3  &  4  Will. 
IV.  c.  42,  s.  2)  for  the  loss  of  a  guest's  goods,  he  can  be 
sued  for  the  breach  of  an  implied  promise  to  keep  them 
safely.  (/) 

(h)  Wentworth  v.  Cock,  10  A.  &  E.  42. 

(i)  He  is  now,  generally  speaking,  liable  by  statute.     See  Chapter  XXXII. 
post. 

(/)  Morgan  v.  Rarey,  2  Fost.  &  F.  2S3.  See,  for  these  and  further  exam- 
ples, Williams,  Executors,  6th  ed.,  159S,  1602.  It  should  be  noticed  that  in 
the  last  case,  as  in  the  similar  one  of  an  action  against  a  carrier  for  breach  of 
the  contract  to  carry  safely,  the  real  ground  of  the  action  is  a  breach  of  con- 
tract, and  not  a  tort. 

It  is  not  quite  clear  how  far  an  executor  can  be  made  responsible  for  an 
act  which  is  not  really  a  breach  of  contract,  by  being  sued  in  the  form  of  an 
action  ex  contractu.  He  can  not,  for  example,  be  sued  for  a. debt  due  on  a 
penal  statute  (2  Williams,  Executors,  6th  ed.,  1597  ;  Anon.,  Dyer,  271  a.)  ;  and 
it  is  questionable  to  what  extent  the  executor  can  be  made  liable  in  an  action 
ex  contractu  for  the  negligence  of  his  testator  ;  e.  g.,  as  a  carrier,  surgeon,  &c. 
Hit  liability  probably  depends  u|)on  the  answer  to  llie  iuquiry,  whether  such 
actions  are  to  be  considered  as  in  substance  actions  for  breach  of  contract  or 
actions  for  tort  (compare  Powell  v.  Layton,  2  N.  K.  370;  Alton  v.  Midland 
Rail.  Co.,  19  C.  B„  N.  S.  213  ;  34  L.  J.  292,  C.  P.  ;  Poz/.i  v.  Shipman,  8  A.  & 
E.  963).  P.ut  it  seems,  on  the  wiiole,  that  an  executor — at  any  rate  of  a  carrier 
— can  be  made  liable  in  an  action  on  contract  for  his  negligence.  Chapter 
XIX. 


33t)  PARTIES     TO    ACTIONS. 

[315]         An  executor  may  i'urtlicr  be  liable  to  an  action 
where  the  testator  coulil  not  have  been  sued;  e.  ^., 
where  he  has  contracted  that  iiis  executors  shall  pay  ;^20 
after  his  death.  (;//) 

The  personal  representatives  arc  bound  by  all  con- 
tracts made  by  the  deceased,  whether  named  the  rein  or 
not,  and  even  when  the  heir  is  named  and  they  are  not 
named,  (;/)  and  their  liability  is  not  diminished  by  the 
fact  that  the  real  representatives  may  be  also  liable,  {j) 
Hence,  an  executor  ma}'  be  sued  on  a  covenant  real,  i.  e., 
one  which  runs  with  the  land,  and  descends  to  the  heir. 
(/)  His  liability,  therefore,  exceeds  his  rights,  in  respect 
of  such  covenants,  {q)  for  an  executor  can  not  sue  on  them, 
even  though  broken  in  the  testator's  lifetime,  unless  sub- 
stantial damage  was  caused  by  the  breach  to  the  personal 
estate. 

Exception  i. — Contracts  limited  to  the  lifetime  of  the  de- 
ceased, (r) 

Exception  2. — Covenants  in  law  not  broken  during  the  life- 
time of  the  deceased. 

Certain  covenants  are  annexed  by  the  law  to  the  use 
of  certain  expressions.  Whenever,  for  example,  certain 
terms  are  used  in  a  lease,  it  is  inferred,  as  a  matter  of  law, 
that  the  person  using  them  enters  into  certain  covenants. 

Thus,  under  a  lease  by  deed,  the  word  demise  or 
[316]    let,  or  any  equivalent  words  sufficient  to  constitute  a 

lease,  import  a  covenant  for  title  and  for  quiet  en- 
joyment, unless  there  be  an  express  covenant  on  either 
point,  in  which  case  no  implication  can  be  raised  from 
such  words,  {s)     Such  implied  contracts  are  limited  to  the 

<■;«)  Powell  V.  Graham,  7  Taunt.  580. 

^«)  Bacon,  Abr.  Heir,  F.  ;  Williams,  Executors,  6th  ed.,  1591,  1592. 

{p)  Ibid.,  1616,  1617. 

(/>)  Ibid. 

(^)  See  ante. 

(r)  Rule  41,  Exception  2.  It  would  appear  that  an  executor  can  not  be 
sued  for  a  breach  of  promise  of  marriage  by  his  testator  See  Chamberlain  v 
Williamson,  2  M.  &  S.  408. 

(s)  Line  v.  Stephenson,  4  Bing.  N.  C.  678  ;  5  Bing.  N.  C.  183  ;  Adams  v 
Gibney,  6  Bing.  656,  666. 


EXECUTLRS  AND  ADMINISTRATORS.      337 

duration  of  the  lessor's  estate,  and  cease  (/)  upon  its  de- 
termination, ill)  No  action  lies  against  an  executor  or 
administrator  upon  such  a  covenant  at  law  which  is  not 
oroken  until  after  the  death  of  the  testator,  {y)  Accord- 
mgly,  where  a  tenant  for  life  remainder  over,  demised  to 
the  lessee,  his  executors,  &c.,  for  a  term  of  fifteen  years, 
without  any  express  covenant  for  quiet  enjoyment,  and 
the  lessee  was  evicted  by  the  remainderman  after  the 
death  of  the  tenant  for  life,  but  before  the  expiration  of 
the  fifteen  years,  it  was  held  that  no  action  of  covenant 
could  be  maintained  by  the  lessee  against  the  executor  of 
the  tenant  for  life  in  respect  of  such  eviction,  although  it 
was  admitted  that  the  use  of  the  word  demise  in  the  lease 
imported  a  covenant  in  law  for  quiet  enjoyment,  (w) 

Exception  3. — Contracts  on  which  the  deceased  must  have 
been  sued  jointly  with  other  persons,  [x) 

SUBORDINATE   RULE    I. 

An  action  can  be  commenced  against  an  executor  before  pro- 
bate, but  an  action  cafi  not  be  commenced  against 
an  administrator  before  letters  of  administration    [317] 
granted  to  him. 

A  person  who  in  any  way  acts  as  executor,  without 
taking  out  probate,  and,  indeed,  without  any  claim  to  be 
executor,  incurs  the  liabilities  attaching  to  the  position 
of  executor,  and,  therefore,  against  such  a  person  who  is 
an  executor  by  his  own  wrong,  or,  as  he  is  called,  an 
executor  de  son  tort,  an  action  can  be,  not  only  com- 
menced, but  also  maintained,  even  though  he  never  prove 
the  will  or  take  out  letters  of  administration,  {y) 

(/)  Line  v.  Stephenson,  4  Bing.  N.  C.  678  ;  5  Bing.  N.  C.  183  ;  Adams  v. 
Gibney,  6  Bing  656,  666  ;  see  Williams  v.  Burrell,  i  C.  B.  402  ;  Penfold  v, 
Abbou,  32  L.  J.  67,  Q.  B. 

(«)  Hulien,  Pleadings,  3rd  ed.,  205,  n. 

(v)  2  Williams,  Executors,  6th  ed..  16 18. 

(w)  Ibid. ;  Adams  v.  Gibney,  6  Bing.  656.  Compare,  as  to  difference  be- 
tween covenants  in  law  and  implied  covenants,  William  v.  Burrell,  I  C.  B. 
402  ;  14  L.  J.  98,  C.  P.  ;  Smith,  Landlord  ai\d  Tenant,  293,  n.  19. 

(x)  Compare  Rule  41,  Excejition  4  ;  ;ind  see  Rule  52  for  explanation. 

(v)  I  Williams,  Executors,  6th  ed.,  247-262. 
22 


338  PARTIES     TO    ACTIONS. 

SUBORDINATE  RULE  II. 

On  the  death  of  a  dcfcnda7it  the  action  may  be  carried  on 
against  his  executor  or  administrator. 

If  the  cause  of  action  against  the  deceased  is  one 
which  survives  against  his  representatives,  an  action 
commenced  against  him  does  not  on  his  death  abate,  but 
may  be  carried  on  against  his  representatives. 

Rule  74. — An  executor  or  administrator  must  be 
sued  in  his  representative  character;  i.  e.,  as  executor 
or  administrator,  on  all  contracts  made  by  the  de- 
ceased. 

An  executor  is  responsible  for  the  contracts  of  the 
testator,  simply  because  he  is  executor,  and  only  in  so 
far  as  he  has  assets.  He  must,  therefore,  be  sued  as 
executor  on  all  contracts  made  by  the  deceased.  The 
same  principle  applies  where  the  ground  of  the  executor's 
liability  is  not  a  contract  of  the  testator's,  but  some  act  of 
his  which  gives  rise  to  a  so-called  implied  contract ;  and 
this  holds  good  even  where  the  breach  of  the  implied  con- 
tract did  not  take  place  until  after  testator's  death. 
[318]  Where,  for  example,  M.  and  A.  are  co-sureties,  and 
after  M.'s  death  A.  is  compelled  to  pay  the  whole 
debt,  A.  certainly  may,  and  apparently  must,  sue  X..  the 
representative  of  M.,  in  X.'s  representative  character , 
i.  e.y  as  executor  or  administrator,  {a) 

Rule  75. — An  executor  or  administrator  must  be 
sued  in  his  personal  character  on  contracts  made  by 
himself.  * 

{a)  2  Williams,  Executors,  6th  ed.,  1637,  1638.     Compare  Corner  v.  Shew 
J  M.  &  W.  350,  353. 

I.  Upon  contracts  wholly  arising    executor  or  administrator  is  liable 
after  tiie  death  of  the  decedent,  the    individually.     Kerchner  v.  McRae 


EXECUTORS  AND  ADMINISTRATORS.      339 

An  executor  is  personally  liable  on  contracts  made  by 
bimse.f,  even  though  they  have  reference  to,  and  are  for 
the  benefit  of,  the  testator's  estate,  {b)    Thus  an  executor. 


{b)  Ibid. 


80  N.  C.  223  ;  Smith  v.  Fellows,  58 
Ala.  471  ;  Solliday  v.  Bissey,  12  Pa. 
St.  349  ;  Grier  v.  Huston,  8  Serg.  & 
R.  405  ;  Beatty  v.  Gingles,  8  Jones, 
303 ;  Wile  V.  Wright,  32  Iowa,  451  ; 
Adams  v.  Butts,  16  Pick.  344  ;  Davis 
V.  French,  20  Me.  22 ;  Beatty  v. 
Tete,  9  La.  Ann.  130. 

And  an  executor  carrying  on  the 
business  of  the  decedent  according 
to  his  will,  will  be  liable  for  the 
debts  thus  contracted.  Laible  v. 
Ferry,  32  N.  J.  Eq.  792. 

If  an  action  has  been  brought 
against  an  executor  individually, 
when  the  debt  is  properly  charge- 
able on  the  estate,  the  pleadings 
may  be  amended  by  inserting  his 
representative  capacity  and  the 
proper  averments.  Poole  v.  Hines, 
52  Ga.  502  ;  Tyler  v.  Langworthy, 
37  Iowa,  555;  Waldsworth  v. 
Waldsworth,  2  Ohio,  160. 

It  may  be  assumed  that  when  a 
suit  is  brought  against  a  person  as 
administrator  it  is  against  him  in 
his  official  capacity.  Irving  v.  Mel- 
ton, 27  Ga.  331  ;  Rhea  v.  Puryear, 
26  Ark.  345. 

When  the  defendant  dies  pend- 
ing suit,  his  administrator  is  a  neces- 
sary party  defendant,  if  the  suit 
survives.  Hayden  v.  Vrecland,  37 
N.  Y.  373  ;  Piatt  v.  St.  Clair,  5  Ohio 
555  ;  Parshall  v.  Moody,  24  Iowa, 
318;  Berkey  v.  Judd,  27  Minn. 
476;  Tupper  v.  Cassell,  45  Miss. 
35  J ;  Norton  v.  Jamison,  23  La. 
Ann.    102.     But    where   the    death 


occurs  after  verdict,  judgment  may 
be  entered  thereon  against  the 
executor  without  action.  Berkey  v. 
Judd,  27  Minn.  476 ;  Norton  v. 
Jamison,  23  La.  Ann.  102.  The 
representative  of  a  decedent  can 
never  be  joined  with  the  survivor 
of  a  joint  contract.  New  Haven, 
&c,,  Co.  v.  Hayden,  119  Mass.  364; 
State  Treasurer  v.  Friott,  24  Vt. 
136;  Fisher  v.  Allen,  36  N,  J.  L. 
203;  Eich  v.  Scivers,  73  111.  194; 
County  of  Wapello  v.  Bigham,  10 
Iowa,  41 .  But  see  Halstead  v.  Cock- 
roft,  49  How.  Pr.  342  ;  Dennis  v. 
Charlick,  6  Hun,  22  ;  Dingman  v. 
Amsink,  'j'j  Pa  St.  117;  Bradford 
v.  Curlee,  41  Mass.  560;  Burgoyne 
V.  Ohio  Ins.  Co.,  5  Ohio  St.  586; 
Taylor  v.  Taylor,  5  Humph,  no; 
Henderson  v.  Talbert,  5  Sm.  &  M. 
no.  But  may  be  sued  alone  as 
though  the  contract  were  joint  and 
severa'..  Curtis  v.  Mansfield,  11 
Cush.  154;  Cochrane  v.  Gushing, 
124  Mass.  219;  Thompson  v.  John- 
son, 40  N.  J.  L.  221  ;  Bolinger  v. 
Fowler,  14  Ark.  27. 

The  general  right  to  sue  an  ex- 
ecutor upon  a  claim  against  the 
estate  of  the  decedent  has  been 
taken  away  by  statute  in  many 
states,  and  now  no  action  can  be 
mainiained  until  the  claims  have 
been  presented  for  settlement. 
Keenan  v.  Saxton,  13  Ohio  42; 
Heutch  V.  Porter,  10  Cal.  559,  In 
re  McCausiand,  52  Cal.  568  ;  Uni- 
versity  of  Vermont  v.  Baxter,  45 


340  PARTIES     TO    ACTIONS. 

though  not  personally  liable  for  the  contracts  of  the  de- 
ceased,  may  make  himself  liable  for  them  by  a  new  con- 
tract, which,  under  the  Statute  of  Frauds,  must  be  in 
writings,  and  which,  unless  it  be  by  deed,  is  of  no  force 
without  a  consideration,  {c)  An  executor  or  administra- 
tor, again,  who  carries  on  the  testator's  trade,  is  per 
sonally  liable  on  contracts  made  in  respect  of  such  trade, 
and  is  so  liable  on  an  implied  contract  to  pay  for  the 
suitable  funeral  expenses  of  the  deceased,  {d)  As,  how- 
ever, an  executor's  liability  in  this  case  depends  on  his 
having  assets,  he  may  defeat  an  "action  founded  only  on 
the  implied  contract,  by  showing  that  he  has  no  assets,  {e) 
The  following  are  some  of  the  distinctions  between  an 
action  against  an  executor  in  his  representative  character 

and  an  action  against  him  in  his  personal  character. 
[319]  The  judgment  against  an  executor,  when  liable 

only  as  such,  is  a  judgment  de  bonis  testatoris,  or 
against  his  testator's  goods.  The  judgment  against  an 
executor,  when  liable  personally,  is  a  judgment  de  bonis 
propriis,  or  against  his  own  goods.  (/)  An  executor, 
sued  as  such,  can  raise  defenses,  e.  g.,  that  he  has  fully 
administered  the  estate  of  the  testator,  which,  from  their 
nature,  are  available  for  an  executor  or  an  administrator 
only,  whilst,  on  the  other  hand,  he  can  not  raise  a  defense, 
such  as  his  own  bankruptcy,  which  might  be  available  in 
an  actif)n  against  him  personally,  {g)  The  difference 
between  the  two  kinds  of  actions  is  further  seen  in  the 
rules  as  to — 

Set-off. — In    in    action   against    an  executor  for  debts 


{c)  2  Williams,  Executors,  6th  ed.,  1640,  1648,  1654.  See.  as  to  considera- 
tion, ante. 

{(/)  Brice  v.  Wilson,  8  A.  &  E.  349. 

(e)  Under  the  plea  of  never  indebted,  viz.,  Tugwell  v.  Heyman,  3  Camp 
298  ;  Rogers  v.  Price,  3  Y.  &  J.  28  ;  Bullen,  Pleadings,  3rd  ed.,  161. 

(/)  2  Williams,  Executors,  6th  ed.,  1823,  1824. 

(g)  I  Ibid.,  603  ;  2  Ibid.,  1793. 

Vt.  650;  County  of  Linn  V.  Day,  16  ciency  cannot  be  decreed  against 

Iowa,  162  ;  Sampson  v.  Sampson,  the    general  assets   of   the  estate. 

63  Me.  332.     So  if  a  mortgage  be  Null  v.  Jones.  5  Neb.  503 ;  Fallon 

not    presented  for  allowance,  defi-  v.  Butler,  21  Cal.  28. 


EXECUTORS  AND  ADMINISTRATORS.      341 

due  Irom  the  testator,  debts  due  to  the  testator  {Ji)  may  be 
set-off,  but  not  debts  due  to  the  executor  as  executor.  (/) 

In  an  action  against  an  executor  on  promises  made  by 
him  as  executor — e.  g.,  on  an  account  stated  by  him  as 
executor  m  respect  of  debts  due  from  the  testator, — it  is 
possible  that  a  debt  due  from  the  plaintiff  to  the  testator 
may  be  set-off,  since  the  account  stated  by  the  executor  as 
such  shows  a  debt  due  from  his  testator  to  the  plaintiff- 
(y)  but  it  would  seem  that  in  an  action  against  an  execu- 
tor for  debts  due  from  him  as  executor,  debts  due  to  the 
testator  can  not  be  set-off. 

In  an  action  against  an  executor,  in  his  personal  capac- 
ity, debts  due  to  him  personally  may  be  set-off,  but  not 
debts  due  to  the  testator,  or  to  him  as  executor.  {Jz) 
An  executor,  sued  as  such,  can  not  set-off  a  debt    [320] 
due  to  him  personall3\  (/) 

Lessor  or  lessee. — An  executor's  liabilities  under  a 
lease  are  peculiar,  as  he  may  be  liable  both  as  executor 
and  as  assignee. 

As  executor  he  is,  as  before  pointed  out,  liable  for  all 
the  promises  of  the  deceased,  and  therefore,  "  although  a 
covenant  in  a  lease  should  be  of  a  nature  to  run  with  the 
land,  {in)  so  as  to  make  the  assignee  of  the  term  liable 
for  a  breach  of  it  after  assignment,  yet  this  shall  not 
discharge  the  lessee  from  a  concurrent  liabilit}'-  on  the 
co\  enant  as  far  as  he  has  assets,  even  although  the  lessor 
may  have  accepted  the  assignee  as  his  tenant.  {11)  There- 
fore, where  the  lessee  has  assigned  the  term  in  his  life- 

Ui)  2  Geo.  II.  c.  22,  s.  13. 

(/')  Mardall  v.  Thellusscn,  6  E.  &  B.  976  (E.\.  Ch.),  reversing  judgment  of 
the  Queen's  liench,  18  Q.  B.  857. 

{  J)  2  Williams,  Executors,  6th  ed ,  1803  ;  Blakesley  v.  Smallwood,  8  Q.  H. 
533  ;  15  L.  J.  185,  Q.  B. ;  see  Rees  v.  Watts,  ir  Ex.  410  ■  25  L.  J.  30,  Ex. 
(Ex.  Ch). 

(k)  2  Williams   Executors,  6lii  ed.,  1803. 

(/)  Hutchinson  v.  Sturges,  Willes,  261,  263.  Compare  gemrally,  as  to  set- 
off, 2  Williams,  Executors,  6th  ed..  1803  ;  Bullen,  Pleadings,  3rd  ed.,  680. 

(w)  As  to  such  covenants,  see  nnte. 

(tt)  The  executor  of  a  lessor,  on  the  other  hand,  is  it  would  seem,  un<lcr  the 
statute  (32  Hen.  VIII.  c.  34),  relieved  by  assignment  of  the  reversion  from  lia- 
bility  to  he  sued  on  covenants  of  the  lessor  which  run  with  thr-  land.  Smith, 
Landlord  and  Tenant.  293,  n.  19. 


342  PARTIES     TO    ACTIONS. 

time,  the  lessor  may  still  maintain  an  action  of  covenant 
upon  an  express  covenant  for  payment  of  rent,  ever 
although  the  lessor  has  accepted  the  assignee  for  his  ten- 
ant, and  so  may  the  assignee  of  the  reversion,  by  virtue 
of  the  Statute  32  Hen.  VIII.  cap.  34.  {0)  So  if  the  exec- 
utor assigns  the  term,  the  lessor  may  afterwards  bring 
covenant  against  the  executor,  notwithstanding  any 
acceptance  of  the  assignee  as  tenant,  and  so  also  may  the 
assignee  of  the  reversion."  (/) 

Hence  the  following  rules  as  to  the  liability  of  an  ex- 
ecutor or  administrator  inactions  for  rent. 

I.  An  executor  is  liable  in   his  representative 
[321]    character  for  all  rent  accrued  due  in  the  lifetime  of 
the  testator,  {q) 

2.  In  an  action  of  debt  for  rent  accrued  due  after  the 
death  of  the  lessee,  the  executor  may,  if  he  enters  upon 
the  demised  premises,  be  sued  at  the  election  of  the  lessor, 
either  as  executor  or  personally  as  assignee,  {r)  And  the 
same  thing  holds  good  when  the  executor  is  sued  on  an 
express  covenant  for  rent,  {s) 

3.  If  the  term  was  assigned  by  the  testator,  the  exec 
utor  can  not,  of  course,  be  sued  as  assignee,  since  the 
term  never  passed  to  him  ;  but  he  may  be  sued  as  execu- 
tor in  debt  for  the  rent,  if  the  lessor  has  not  accepted  the 
assignee  as  tenant,  and  even  in  this  case  he  may  be  sued 
as  executor  on  an  express  covenant  to  pay  rent.  (/) 

4.  If  the  executor  himself  assigns  the  term,  he  is 
chargeable  as  assignee  for  the  time  onl}^  during  which  he 
occupied  the  premises ;  and  if  he  is  sued  for  rent  accrued 
due  since  the  assignment  by  himself,  he  is  liable  as  execu- 
tor only.  (?/) 

{o)  Brett  V.  Cumberland,  Cro.  Jac.  521,  522  ;  Thursby  v.  Plant,  I  Wms, 
Saund.  241  a,  n.  (5). 

(/)  2  Williams,  Executors,  6th  ed.,  1616,  1617.  See  Hellier  v.  Casbard,  I 
Sid.  266  ;  Coghill  v.  Freelove,  3  Mod.  325  ;  but  see  22  &  23  Vict.  c.  35,  s.  27. 

(y)  2  Williams,  Executors  6lh  ed.,  i6ig. 

{r)  Ibid.  As,  however,  to  the  defenses  which  he  may  raise,  bue  Bullen 
Pleadings,  3rd  ed.,  212. 

(j)  Ibid. 

(/)  2  Williams,  Executors,  6th  ed.,  1624. 

(«)  Ibid.,  1624,  1625. 


EXECUTORS  AND  ADMINISl RATORS.      343 

Exception.— ConirsiCls    made    by     executor    distinctly    as 
executor. 

"  Modern  authorities  have  established  that  in  several 
instances  an  executor  may  be  sued  as  executor  on  a  prom- 
ise made  by  him  as  executor,  and  that  a  declaration 
founded  on  such  promise  will  charge  the  defendant  no 
further  than  a  declaration  on  a  promise  of  the  testator.' 
{x)  Thus  he  may  be  sued  as  executor  for  money  paid 
for  him  in  that  character,  {y)  and  on  an  account  stated,  as 
on  a  statement  made  by  him  as  executor. 

SUBORDINATE   RULE.  [322] 

In  an  action  against  an  executor  or  administrator,  claims 
made  against  hint  in  his  representative  character  can 
not  he  joined  with  claims  made  against  him  in  his  per- 
sonal character,  {z) 

Counts  charging  the  defendant  as  executor  or  adminis- 
trator can  not  be  joined  with  counts  charging  him  per- 
sonally  in  his  own  right,  and  a  declaration  uniting  such 
counts  is  bad  on  demurrer,  {a) 

The  Common  Law  Procedure  Act,  1852,  s.  41,  which 
allows  different  kinds  of  action  by  and  against  the  same 
parties  in  the  same  rights  to  be  joined,  does  not  apply  to 
such  cases,  {b) 

Rule  76. — All  co-executors  or  co-administrators 
who  have  administered,  should  be  joined  as  defend- 
ants in  an  action. 

When  an  action  is  brought  by  executors,  they  must, 
in  general,  all  join,  whether  they   have  administered   or 

(;c)  Ibid.,  1636. 

\y\  Ashby  v.  Asliby.  7  B.  &  C.  444- 

(«)  See  correspoiuiing  subord'nate  rule  as  to  plaintifls,  ante. 

(a)  Noi  jan  claims  against  aft  executor  as  such  be  joined  in  the  same  count 
with  claims  against  him  personally      Kitchenman  v.  Skeel,  3  Ex.  49. 

(/-)  Davics  V.  Davies.  I  H.  &  C.  t5i  :  3i  I-  J-  476.  Ex.  ;  Wiglcy  T.  Ashtoo. 
■?  B.  &  Aid.  loi  ;  Builen.  Pleadings,  3rd  ed..  152,  154.  155- 


344  PARTIES     TO     ACTIONS. 

not,  (r)  but  the  rule  as  to  joinder  is  different  in  actions 
against  executors  or  administrators;  lor  none  need  be 
joined  who  have  not  administered. 

Hence,  suppose  X.,  Y.,  and  Z.  to  be  co-executors,  and 
an  action  to  be  brought  against  X.  and  Y.,  they  can  not 
plead  the  non-jomder  of  Z.,  unless  they  can  also  plead  that 

he  has  administered,  {d) 
[323]         An    executor  de  son  tort  may  be  sued  jointly 
with  a  lawful  executor,  or  they  each  may  be  sued 
separately,  but  an  administrator  can   not  be  sued  jointly 
with  an  executor  de  son  tort,  {e) 

It  is  no  reason  for  not  joining  an  executor  as  defend- 
ant, that  he  is  a  bankrupt.  If  a  married  woman  is  sued  as 
co-executrix,  or  co-administratrix,  her  husband  must  be 
joined  as  co-defendant.  (/) 


Rule  jj. — The  heir  may  be  sued  on  contracts  of 
the  deceased  in  three  cases,  sc, 

1.  On  contracts  by  deed  in  which  the  ancestoi 
expressly  binds  himself  and  his  heirs. 

2.  On  contracts  of  record. 

3.  On  covenants  real. 

Case  I. — Where  the  ancestor  expressly  binds  himself 
and  his  heirs  by  a  contract  under  seal,  the  heir  may  be 
sued,  {g)  but  he  is  not  bound  by  the  simple  contracts  of 
his  ancestor,  nor  is  he  bound  by  a  bond  or  obligation, 
unless  he  is  named,  {h)  and  it  is  said  that  he  is  not  bound 
unless  the  ancestor  binds  himself  also :  (/)  an   heir,  more- 

{c)  As  to  the  effect  of  non-joinder  in  actions  on  contrict,  see  Chapter 
XXXIV.,  post. 

(d)  2  Williams,  Executors,  6th  e<l.,  1787. 

{e)  I  Williams,  Executors,  6th  ed.,  255. 

(/)  Ibid.,  1787.  See  an^e.  As  to  the  effect  of  death,  see  Rules  44,  45,  aw// 
which  apply,  mutatis  mutandis  as  well  to  actions  against  as  to  actions  by  exec- 
utors, &c. 

{g)  Bacon,  Abr.,  Heir,  F. 

(^)  Harber  v.  Fox,  2  Wms.  Saund.  134,  136. 

(i)  Ex  parte  Tindall,  8  Bing.  402. 


EXECUTORS  AND  ADMINISTRATORS.      345 

over,  is  bound  only  provided  that,  and  in  so  far  as,  he  has 
legal  assets  from  his  ancestor.  (/) 

Case  2.  If  an  ancestor  bind  himself  by  a  contract  of 
record,  e.  g.,  a  judgment,  statute,  recognizance,  &c.,  the 
heir  is  bound. 

Case  3.  The  heir  is  bound  as  assignee  on  cove- 
nants real ;  i.  e.,  covenants  which  run  with  the  land   [324] 
and  descend  to  the  heir,  {k) 

SUBORDINATE  RULE  I. 

A  devisee  is  liable  under  the  same  circumstances  under  which 
the  heir  would  be  liable. 

A  devisee,  or  person  to  whom  freehold  estate  is  de- 
vised by  will,  was  not  at  common  law  liable  for  any  con- 
tract of  the  devisor.  But  by  11  Geo.  IV.  &  i  Will.  IV.  c. 
47,  ss.  2,  3,  4,  a  devisee  is  placed  in  the  same  position  as 
the  heir ;  i.  e.,  the  devisee  is  bound  under  the  same  cir- 
cumstances, and  to  the  same  extent  as  the  heir  would 
have  been  bound  if  the  land  had  come  to  him  by  descent. 
If  there  is  an  heir,  the  devisee  is  bound  jointly  with  the 
heir,  and  must  be  sued  jointly  with  him.  (/)  If  there  is  no 
heir,  the  devisee  is  bound  solely.  (;«) 

A  devisee  of  a  devisee  is  bound  as  well  as  the  original 
devisee.  («) 

SUBORDINATE  RULE  II. 

In  no  case  can  an  executor  or  administrator  be  sued  together 
with  an  heir  or  devisee. 

An  action  can  not  be  brought  against  the  executor  and 

{j)  Buckley  v.  Nightingale,  I  Str.  655. 
{k)  See  anlf. 

(/)  Bullen,  Pleading';,  3rd  ed.,  21,  169. 

(w)  Hunting  v.  Shel.Irake,  9  M.  &  W.  256.     See  Morley  v.  Morlcy,  25  L.  J, 
l.Ch. 

(ft)  II  Geo.  IV   &  I  Will.  IV.  c.  47.  s.  3  ;  Bullen.  Pleadings.  3rd  cd.,  i6r 


346  PARTIES     TO    ACTIONS. 

the  heir  jointly,  but  when  each  are  liable,  the  plaintiff  may 
sue  either  at  his  choice,  and  may  sue  each  at  the  same 
time.  When  an  heir  is  also  executor,  separate  actions 
may  be  brought  against  him  in  each  capacity,  {o) 

(o)  Chit.    Pleadings  7th  ed.,  61. 


GENERAL    RULES.  347 


CHAPTER   XIX. 

ACTIONS    FOR   TORT. 
PLAINTIFFS. — GENERAL   RULES. 

Rule  78. — No  one  can  bring  an  action  for  any 
injury  which  is  not  an  injury  to  himself. 

It  follows  from  the  general  principles  already  laid 
down  {a)  that  no  one  can  bring  an  action  for  any  "  tort" 
or  injury  {b)  {i.  e.,  any  interference  with  a  right  existing 
independently  of  a  contract),  except  the  person  whose 
right  has  been  interfered  with:  A.,  that  is  to  say,  can 
never  sue  X.  merely  for  an  injury  done  to  B.  by  X. 

The  rule  that  one  person  can  not  bring  an  action  for 
an  interference  with  the  rights  of  another,  seems,  -at 
first  sight,  too  obvious  to  need  explanation  ;  but  it  might 
appear,  from  the  language  in  which  actions  are  constantly 
described,  to  be  subject  to  exceptions.  Thus  actions  are 
spoken  of  as  brought  by  masters  for  injuries  to  servants  ; 
by  parents  for  wrongs  to  their  children  ;  or,  again,  by 
tenants  or  bailees  for  damage  to  the  property  of  theii 
landlords  or  bailors.  It  will,  however,  be  found  that  in 
all  the  cases  in  which  A.  is  described  as  suing  X.  for 
injuries  to  B.,  the  real  ground  on  which  he  maintains 
an  action  is  the  invasion  of  some  right  of  his  own,  though 
.  it  may  happen  that  the  injury  to  A.  is  the  result  ot,  or 
closely  connected  with,  a  wrong  done  to  B. 

Master  and  servant. — A  master  often  brings  an    [326] 
action  for  what  is  called  an   injury  to  his  servant. 
In  strictness,  however,  the  master  sues,  not  for  the  injury 

(a)  Rule  2, 

(b)  For  the  clifTcrcnt  meanings  of  the  term  "  injury,"  see  ante. 


348  PART  ins     TO    ACTIONS. 

to  his  servant,  but  for  tlic  injury  to  liimself  resulting  from 
damage  to  his  servant.' 

"  If  my  servant  is  beat,  the  master  shall  not  have  an 
action  for  this  battery  unless  the  battery  is  so  great  that 
bv  reason  thereof  he  loses  the  service  of  his  servant;  but 
the  servant  himself  for  every  small  battery  shall  have  an 
action,  and  the  reason  of  the  difference  is,  that  the  master 
has  not  any  damage  by  the  personal  beating  of  his  ser- 
vant, but  by  reason  of  [the  loss  of  service],  so  that  the 
original  act  is  not  the  cause  of  his  action,  but  the  conse- 
quent upon  it,  viz.,  the  loss  of  his  service.  .  .  .  For 
be  the  battery  greater  or  less,  if  the  master  doth  not  lose 
the  service  he  does  not  have  an  action."  (c) 

Hence  it  does  not  matter,  as  regards  the  master's  right 
to  sue,  how  the  injury  is  caused  to  the  person  of  his  ser- 
vant, v^^hether  by  an  assault,  {d')  by  battery,  {e)  by  negli- 
gence, (/")  or  otherwise.  The  loss  of  service  is,  on  the 
other  hand,  essential,  but  a  service,  de  facto,  is  enough 
to  support  the  action,  {g)  The  master  and  servj^nt  have 
each  a  separate  right  of  action,  the  master  for  the  loss  of 

service,  the  servant  for  the  assault,  &c.  {Ji) 
[327]         Pareiit  and  child. — The  right  of  a  parent  to  sue  for 
injuries  to  his  child  is  the  same  in  principle  as  that  ot 
a  master  to  sue  for  injuries  to  his  servant.     A  parent  sues 

(f)  Mary's  case,  9  Coke,  113  a. 

\d)  Gilbert  v.  Schwenck,  14  M.  &  W.  488. 

(<f)  Mary's  case,  9  Coke,  113  a. 

(/)  Hall  V.  Hollander,  4  B.  &  C.  660;  Martinez  v.  Gerber,  3  M.  &  G.  88 
Gough  V.  Bryan,  2  M.  &  W.  770. 

{g)  See  Martinez  v.  Gerber,  3  M.  &  G.  88  ;  10  L.  J.  314,  C.  P.  For  these 
and  other  examples,  see  Smith,  Master  and  Servant,  2nd  ed.,  96,  97. 

{h)  The  master  may  have  a  right  to  sue  for  loss  of  service  when  no  injury 
has  been  done  to  the  servant.  Thus,  where  a  servant  has  been  enticed  away 
from,  or  induced  to  break  his  contract  of  service,  by  a  person  who  knew  the 
servant  to  be  in  the  employment  of  the  plaintiff,  the  master  can  sue  the  person 
enticing  the  servant  away  (Lumley  v.  Gye,  2  E.  &  B.  216  ;  22  L.  J.  463,  Q.  B.  ; 
23  L.  J.  112,  Q.  B. ;  Hart  v.  Aldridge,  Cowp.  54;  Blake  v,  Lanyon,  6  T.  R. 
221  ;  Smith,  Master  and  Servant,  2nd  ed.,  87-89). 

I.  The  master  may  maintain  an  Denio,  373;    Ames  v.  Union  Ry. 

action     for    the    loss    of    service,  Co.,  117  Mass.  543 ;  Passenger  Ry. 

whether  the  servant  be  a  child  or  Co.  v.  Stuller,  54  Pa.  St.  378. 
not.     Wood\'ard   v.  Washburn,   3 


GENERA  L    R  ULES.  349 

not  as  a  parent,  but  as  a  master,  and  the  ground  of  the 
action  is  the  loss  of  service.  He,  therefore,  sues  for  the 
wrong,  not  to  his  child,  but  to  himself;  and  can  recover 
damages  only  for  the  loss  of  service  he  has  sustained,  {t) 
and  not  for  his  wounded  feelings.  The  service  is  essen- 
tial. When,  therefore,  the  defendant  drove  his  carriage 
against  the  plaintiff's  son,  who  was  only  two  years  and  a 
half  old,  and  the  plaintiff  brought  an  action  of  trespass  per 
quod  servitium  amisit  against  the  defendant,  the  action 
was  held  not  to  lie,  for  the  child  was  not  competent  to 
perform  any  act  of  service,  {k)  If,  however,  there  is  a 
capacity  to  serve,  very  slight  evidence  is  sufficient  to 
support  the  allegation  of  service,  and  an  action  has  been 
maintained  for  an  injury  to  the  plaintiff's  son  though  only 
eight  or  nine  years  of  age,  without  proof  of  actual  service, 
{/}  and  {m)  where  a  capacity  to  serve  exists,  the  tendency 
of  the  courts  is  to  infer  service  from  residence  with  the 
parent  without  proof  of  actual  service,  {n)  The  reason, 
however,  which  used  to  make  it  desirable  to  sue  in  the 
name  of  the  parent  (viz.,  that  if  the  child  was  a  party  to 
the  action  his  evidence  was  excluded),  no  longer  exists,  {0) 
and  in  cases  of  doubt  the  action  should  always  be  brought 
in  the  name  of  the  child. 

As  the  parent  and  the  child  have  each  a  separate  right 
of  action,  recovery  by  one  is  not  an  answer  to  an  action 
by  the  other,  {p) 

Seduction. — The  action  for  seduction  depends,  in 
theory,  upon  the  existence  of  the  relation  of  master   [328J 
and    servant,   and    illustrates     both    the   first   and 
second   {q)   rules   laid    down    in   this   chapter ;  since  the 
woman   seduced   can   not   sue,    having    (on   the   ground 
volenti  non  fit  injuria)  suffered  no  legal  wrong  ;  and   the 

{i)  Flemington  v.  Smithcrs,  2  C.  &  P.  2g2. 
{k)  Hall  V.  Hollander,  4  B.  &  C.  660. 
(/)  Ibid. 

(m)  Smith,  Master  and  Servant,  2nd  ed.,  97. 

(n)  Jones  v.  Brown,  Peake,  233  ;  Torrence  v.  Gibbins,  5  Q.  B.  300. 
{0)  14  &  15  Vict.  c.  99,  s.  2. 

(/»)  Edmondson  v.  Machell,  7  T.  R.  4  ;  Savil  v.  Kirby,  lo  Mod.  386  ;  Smith 
Master  and  Servant,  2nd  ed.,  97,  98. 
(y)  See  Rule  79. 


350  PARTIES     TO    ACTIONS. 

person  who  can  bring  an  action  is  the  parent  or  master, 
who  sues,  in  theory  at  least,  for  the  wrong  to  him,  viz., 
the  loss  of  service. 

The  action,  therefore,  can  be  brought  by  any  one  who 
stands  in  the  relation  of  master  to  the  woman  seduced, 
whether  he  be  merely  the  master,  (r)  or  the  parent, 
brother  {s)  or  aunt  (/)  of  the  woman.  It  is  no  objection 
that  the  woman  was  of  age  at  the  time  of  the  seduction  ; 
and  it  has  been  held,  in  a  case  where  she  lived  with  her 
father  and  acted  as  his  servant,  («)  no  objection  to  the 
action  that  she  was  a  married  woman. 

But,  on  the  other  hand,  service  of  some  sort  is  abso 
lutely  essential.  If  a  daughter,  for  instance,  is  in  the 
actual  service  of  another  person,  her  father  can  not  main- 
tain the  action,  {x)  In  this  case  it  would  seem  the  master 
might  sue.  Where,  again,  a  daughter  is  living  independ- 
ently and  supporting  herself  and  the  family,  neither  the 
parent  nor  any  one  else  can  bring  an  action  for  her  seduc- 
tion. {}>)  Thus,  where  a  woman  standing  in  the  position 
described  was  seduced,  and  her  father  brought  an  action 
for  the  seduction,  he  was  nonsuited  on  grounds  which  are 
thus  explained  in  the  judgment  of  Erle,  C.  J.  :■ — 

"  There  was  no  evidence  that  the  daughter  was  the 
servant  of  the  plaintiff  in  the  sense  in  which  the  word 
servant  is  used  in  the  declaration.  She  was  herself  the 
nead  of  an  establishment  of  her  own,  and  though  she  con- 
ferred benefits  on  her  father's  family,  she  was  not  a 
[329J  subordinate  member  of  it,  and  did  not  render  to  the 
plaintiff  services  for  the  loss  of  which  this  action  can 
be  maintained."  {z) 

Very  slight  evidence  of  service  will  be  accepted  as 
sufficient  if  a  daughter  resides  with  her  parents.  Thus, 
milking  cows,  making  tea,  &c.,  amounts  to  service ;  {a)  and, 

(r)  Fores  v.  Wilson,  Peake,  55. 

\s)  Howard  v.  Crowther,  8  M.  &  W.  601. 

(/)  Edmondson  v.  Machell,  2  T.  R.  4. 

(«)  Hooper  v.  Luffkin,  7  P>.  &  C.  387- 

{x)  Dean  v.  Peel,  5  Ea-t,  46. 

{)>)  Manley  v.  Field,  29  L.  |.  79,  C.  P.  ;  7  C.  B.,  N.  S.,  96. 

(z)  Manley  v.  Field,  29  L.  j.  80,  C,  P.,  judgment  of  Erle,  C.  J 

(a)   Bennett-v.  Alcott,  2   T.  K.  i63  ;  Carr  v.  Clarke,  2  Cii.  260. 


GENERAL     RULES. 


351 


indeed,  it  would  seem  that  it  is  not  necessary  to  prove  any 
service  beyond  the  services  implied  from  the  daughter's 
living  in  her  father's  house  as  a  member  of  his  family,  {b) 
or,  in  other  words,  that  the  mere  fact  of  her  living  at  home 
is  sufficient  proof  of  service,  {c) ' 

(!>)  Evans  v.  Walton,  L.  R.  2,  C.  P.  615. 

(c)  Since  the  action  for  seduction,  though,  in  theory,  brought  for  the  loss  of 
service,  is,  in  reality,  a  means  of  bringing  an  action  against  the  seducer  for  the 
seduction  itself,  it  exhibits  several  peculiarities  which  are  not  strictly  consistent 
with  the  theory  on  which  the  action  is  supposed  to  rest. 

First, — The  seducer  need  not  be  shown  to  know  of  the  existence  of  the  ser- 
vice, though  such  knowledge  is  essential  to  the  maintenance  of  an  ordinary 
action  brought  by  an  employer  against  a  person  who  entices  away  a  servant 
from  his  employment. 

Secondly, — The  slightest  evidence  of  service  is  sufficient. 

Thirdly, — The  parent  may  claim  damages  for  the  injury  to  his  feelings 
(Dodd  v.  Noriis,  3  Camp.  518). 

Fourthly, — The  action  will  not  lie  unless  pregnancy  or  other  illness  has  re- 
sulted, so  as  to  disable  the  person  seduced  from  performing  her  accustomed 
duties  (Eager  v.  Grimwood,  i  Exch.  61  ;  16  L.  J.  236,  Ex.).  Yet,  where  no 
illness  has  been  produced,  an  action  may  be  brought,  not  for  the  seduction 
strictly,  but  for  enticing  away  the  plaintiff's  daughter.  No  allegation  is  then 
necessary,  either  that  she  was  debauched,  or  that  there  was  a  binding  contract 
of  service  between  her  and  the  plaintiff  (Evans  v.  Walton,  L.  R.  2,  C.  P.  615). 


I.  A  woman  has  by  statute  an 
action  for  her  own  seduction  in 
Indiana.  Ind.  Rev.  Stat.  1881,  g 
263;  Thompson  v.  Young,  51  Ind. 
599  ;  and  infancy  is  no  bar  ;  Lee  v. 
Hefley,  21  Ind.  98.  But  the  statute 
has  no  extra-territorial  effect.  Buck- 
les V.  Ellers,  72  Ind.  220. 

Under  the  Michigan  statute  pro- 
viding that  in  actions  for  seduction, 
no  allegations  of  loss  of  service  is 
necessary,  and  that  if  a  minor  the 
action  may  be  brought  by  a  parent 
or  guardian,  and  if  of  full  age  by 
.  her  father  or  other  relative  author- 
ized by  her  to  bring  the  same,  it 
was  held  that  a  woman  might  sue 
for  her  own  seduction.  Watson  v. 
Watson,  49  Mich.  540  .She  inay 
sue  under  the  statute,  though  it 
authorizes  certain  representatives  to 


sue.  Weiher  v.  Meyersham,  50 
Mich.  602. 

A  woman  cannot  maintain  an 
action  for  her  own  seduction.  Cline 
V.  Templeton,  78  Ky.  550  ;  State  v. 
Pierce,  27  Conn.  319.  But  any  one 
who  loses  her  services  as  a  result 
of  the  seduction,  or  to  whom  her 
services  are  due  at  the  time,  may 
maintain  suit  for  the  injury  and  loss 
of  service.  White  v.  Ncllis,  31  N. 
Y.  405  ;  Bartley  v.  Richtmeyer,  2 
Barb.  182;  Moran  v.  Dawes,  4 
Cow.  412  ;  Ball  v.  Bruce,  21  111. 
161. 

A  father  may  sue  if  the  relation 
of  master  and  servant  exist  either 
actually  or  constructively  ;  Mulve- 
hail  V.  Mil  ward,  11  N.  Y.  343; 
Kennedy  v.  Shea,  no  Mass.  150; 
Wilson    v.    Sproul,    3    Pa.   St.   46 '. 


352 


PARTIES     TO    ACTIONS. 


Landlord  and  tenant. — Actions  are  oiten  broui^ht  in 
the  name  of  a  tenant  for  a  trespass  on  the  landlord's 
estate ;  or  in  the  name  of  a   bailee  {e.  g.,   a   carrier),  for 


Greenwood  v.  Greenwood,  28  Md. 
369;  McAulay  v.  Birkhead,  13 
Ired.  30;  Kendrick  v.  McCrary,  11 
Ga.  603;  El.ington  v.  Ellington,  47 
Miss.  329;  Vossell  v.  Cole,  10  Mo. 
634;  Sover  V.  Dill,  3  Iowa,  330; 
even  if  she  is  over  uventy  years 
old,  if  she  performed  any  service 
however  slight.  Moran  v.  Uawes, 
4  Cow.  412  ;  Badgeley  v.  Decker, 
44  Barb.  577  ;  Pliipps  v.  Garland, 
3  Dev,  &  B.  45  ;  Wallace  v.  Clark, 
2  Overton,  93  ;  Briggs  v.  Evans,  5 
Ired.  16.  Or  the  mother  may  sue,  if 
the  father  be  dead,  Damon  v.  Moore, 
5Lans.  454;  Badgeley  v.  Decker,  44 
Barb.  77  ;  Gray  v.  Durland,  51  N. 
Y.  424 ;  even  where  the  daughter 
was  thirty-one  and  the  father  an 
absentee  for  over  seven  years,  un- 
heard from ;  Davidson  v.  Abbott, 
52  Vt.  570.  Or  a  stepfather,  if  she 
be  living  in  his  family ;  Bracy  v. 
Kibbe,  31  Barb.  273;  Maguinay  v. 
Saudek,  5  Sneed,  146 ;  Bartley  v. 
Richtmeyer,  2  Barb.  182  ;  S.  C,  4 
N.  Y.  38.  Or  a  brother,  Millar  v. 
Thompson,  i  Wend.  447.  Or  a 
cousin,  Davidson  v.  Goodall,  18  N, 
H.423.  Or  any  one  in  loco  parentis, 
Kellar  v.  Donnelly,  5  Md.  211; 
Furman  v.  Applegate,  3  Zab.  28 ; 
IngersoU  v.  Jones,  5  Barb.  661.  Or 
a  guardian,  Fernsler  v.  Moyer,  3 
W.  &  S.  416.  Or  a  foster  parent, 
IngersoU  v.  Jones,  5  Barb.  661.  Or 
a  putative  grandfather,  Monty  v. 
Gamhart,  7  Watts,  302 


"  Actions  of  this  kind  are  founded 
on  the  relation  of  master  and  ser- 
vant. *  *  *  The  principle  is 
the  same  as  in  an  action  for  beating 
a  servant,  by  means  of  which  the 
master  lost  his  services.  In  neither 
case  does  the  act  done  to  the  ser- 
vant give  any  right  of  action  to  the 
master,  unless  it  results  in  injury 
to  him.  For  the  beating  itself  the 
servant  may  sue,  and  so  she  might 
for  the  debauching  if  it  were  not  for 
her  consent."  Bronson,  C.  J.,  in 
Bartley  v.  Richtmyer,  4  N.  Y.  38. 

"  The  right  of  the  master,  as  rec- 
ognized by  the  law,  is  to  have  the 
services  of  the  servant  undisturbed 
by  the  wrongful  act  of  another. 
Whenever  the  wrongful  act,  by 
immediate  and  direct  consequence, 
deprives  the  master  of  the  service 
of  his  servant,  or  injuriously  affects 
his  legal  right  to  such  service,  the 
law  gives  a  remedy."  Davis,  J.,  in 
White  V.  Nellis,  31  N.  Y.  405, 

A  parent  who  has  had  no  care  of 
his  child  and  allowed  her  to  shift 
for  herself  has  no  action  for  her  se- 
duction. Ogborn  v.  Francis,  44  N. 
J.  L.  441. 

An  action  cannot  be  maintained 
by  the  commissioi^jj|j||ipurt  of  a 
county  against  t'-IPTceeper  of  the 
poorhouse  for  debauching  one  of 
the  inmates  of  the  poorhouse. 
Commissioners'  Court  v.  McCariri, 
23  Ala.  599. 


GENERA  L    R  ULES.  3  5  3 

J\\\vy  to  the  goods  of  the  bailor.  But  the  tenant  or  bailee 
'toes  not,  in  fact,  sue  for  the  invasion  of  the  landlord's  or 
bailor's  rights,  but  for  an  injury  to  himself,  s.c,  for  an 
invasion  of  his  rights  as  possessor  (though  not  owner)  of 
the  estate,  or  the  goods  injured  by  the  wrong-doers. 
Actions  of  this  kind  are  an  illustration  of  the  rule  [330] 
under  consideration,  but  they  are  most  conveniently 
considered  in  reference  to  the  following  rule : 

Rule  79.— The  person  who  sustains  an  injury  {d) 
is  the  person  to  bring  an  action  for  the  injury  against 
the  wrong-doer.' 

The  ground  of  an  action  for  tort  must  always  be  an 
interference  by  a  wrong-doer  with  some  right  existing 
independently  of  any  contract  between  the  plaintiff  and 
the  defendant,  {e)  or,  in  other  words,  an  injury.  When, 
however,  it  is  ascertained  that  an  injury  has  been  com- 
mitted, e.  g.,  that  X.  has,  without  any  legal  excuse,  dam- 
aged property  which  is  not  his  own,  it  is  often  a  point  of 
some  nicety  to  decide  which  of  several  individuals  is  the 
person  who  has  a  right  to  sue  X.  The  principle  to  be 
borne  in  mind  is,  that  the  person  who  must  be  made  the 
plaintiff  in  the  action  is  the-person  whose  legal  rights  have 
been  invaded,  who  may  or  may  not  be  the  individual  who 
would  generally  be  considered  most  interested  in  main- 

(d)  I.  e.,  an  interference  with  legal  rights  existing  independently  of  a  con- 
tract. 

{e)  See  a.itt. 

I.  In  Fairmoum,  &c.,  Ry.  Co.  v.  held  that  the  contract  to  carry  safely 

Stutler,    54  Pa.   St,   375,  a  minor,  was  with  the  minor  ;  that  the  mother 

having  no  father,  but  living  with  was  a  stranger  to  it,  and  she  could 

his  mother,  and  by  his  labor  con-  not  recover  for  the  injury.     If  the 

tributing  to  her  support,  was  a  pas-  action  had  been  by  the  father,  who 

senger  on  a  railway  car  and   paid  was  entitled  to  service,  it  might  have 

his   fare.     He  was  injured   by  the  been  maintained,  as  in  the  case  of 

negligence  of  the  company's  ser-  seduction,  where  the  injury  arises 

vants,  and  was  provided  with  medi-  from  a  wrong,  and   not  as  in  this 

cal  attendance,   nursed    and    sup-  case,  from  a  contract, 
ported  by  his  mother ;  and  it  was 
23 


354  PARTIES     TO    ACTIONS. 

taining  the  action.  The  bearing  ot  the  general  rule  is  best 
shown  bv  considering  its  application  to  the  three  great 
classes  of  injuries;  viz.,  injuries  to  person,  injuries  to 
character,  injuries  to  property.  (/) 

Injuries  to  person. — Ever}'  man  has  a  right  to  recover 
damages  for  any  injur}'  done  to  his  person,  whether 
caused  bv  the  willful  act  or  by  the  negligence  of  another  ; 
e.  g.,  if  A.  is  assaulted,  falsely  imprisoned,  &c.,  by  X.,  he 
can  recover  from  X.  compensation  both  for  the  immediate 
wrong  and  for  its  consequences.  For  the  imme- 
[331]  diate  wrong  done  to  the  person,  e.  g.,  for  tlie  mere 
assault,  no  one  can  sue  except  the  person  assaulted  ; 
{g)  but  if  an  assault  by  X.  upon  B.  indirectly  damages  A., 
by  depriving  A.  of  B.'s  services,  A.  can,  as  before  pointed 
out,  (//)  sue  X.  for  the  damage  done  to  him.  It  is,  however, 
obvious  that  the  one  act, — s.c,  the  assault, — has  given  a 
right  of  action  to  two  persons,  simply  because  the  one 
wrongful  act  has  interfered  with  the  separate  rights  of  two 
separate  persons,  i.  e.,  with  the  right  of  B.  not  to  be 
assaulted,  and  with  the  right  of  A.  not  to  be  deprived  of 
the  services  of  B. 

Injuries  to  character. — Each  person  libeled  or  slan- 
dered can  sue  for  the  injury  done  to  himself;  and  though, 
it  is  conceived  cases  may  be  imagined  in  which  a  libel  dn 
A.  might  cause  indirectly  an  injury  to  B.,  for  which  B. 
might  perhaps  sue  X.,  the  libeler,  such  cases  raaust  be 
rare  ;  and  as  a  general,  if  not  an  invariable,  rule,  the  only 
person  who  can  sue  for  a  libel  or  slander  is  the  person 
with  reference  to  whom  the  libel  is  written  or  the  slander 
uttered. 

(/)  It  may,  perhaps,  be  worth  noticing  that  the  expression  injuries  to 
person,  property,  &c.,  is  an  abbreviated  expression  for  injuries  to  a  man  in  re- 
spect  of  his  j^erson,  property,  &c. 

{g)  See  Rule  78,  ante. 

The  reader  should  bear  in  mind,  throughout  the  chapters  on  actions  for 
tort,  the  distinction  between  Trespass  and  Case ;  the  one  being  rhe  form  of 
action  for  direct,  the  other  for  indirect  01  consequential  injury.     See  ante, 

(h)  See  anle. 


GENERA  L     R  ULES.  3  5  5 

hijiiries  to  property. — These  injuries  consist  in  damage 
either  to  real  propert}'  or  to  personal  propert3^ 

Real  property. — Injuries  to  real  property  either  affect 
the  immediate  enjoyment  of  it,  /.  e.,  the  possession,  or, 
more  strictly,  the  rights  arising  from  the  possession  of  it, 
or  else  affect  the  permanent  or  ultimate  value  of  the  prop- 
erty, or,  lastly,  affect  both  the  immediate  enjoyment  and 
the  permanent  or  ultimate  value  of  the  property.  If,  for 
example,  a  stranger  walks  across  land,  his  act  of  trespass 
affects  the  immediate  enjoyment  of  the  land,  but  does  not 
affect  its  permanent  value.  If,  on  the  other  hand,  he  digs 
away  part  of  the  soil,  he  affects,  in  however  small  a 
degree,  the  permanent  value  of  the  property,  and 
at  the  same  time  interferes  with  the  immediate  en-  [332] 
joyment  of  it  in  its  uninjured  state,  iji) 

An  interference  with  the  actual  enjoyment  of  property 
IS  an  interference  with  the  rights  of  the  person  actually 
in  possession.  Any  damage  to  the  permanent  value  of 
real  property  is  an  interference  with  the  rights  of  the 
owner,  and,  of  course,  may  be  at  the  same  time  an  in- 
vasion of  the  rights  of  the  person  in  possession.  Where 
one  and  the  same  person  is  both  the  owner  of  property 
and  actually  in  possession  of  it,  as  where  a  man  owns  the 
fee  simple  of  land,  in  which  he  has  granted  no  interest  to 
any  other  person,  and  also  resides  on  the  land,  it  is  clear 
that  he  has  all  the  rights  that  can  be  possessed  over 
the  land,  and  that  he,  and  he  alone,  can  sue  for  any 
mjury  to  the  land,  of  whatever  description  ;  for  he  is  the 
sole  person  who  has  rights  with  regard  to  it  which  can  be 
invaded.  But  it  often  happens  that  different  persons  have 
different  interests  in  the  same  land.  A.,  for  example,  is  in 
possession  of  the  land  as  tenant  for  years,  and  has  there- 
fore a  riglit  to  the  immediate  enjoyment  or  possession 
of  it,  whilst  B.,  his  landlord,  has  not  the  possession  of  the 
land,  but  has  an  interest  in  the  permanent  value  of  the 
property,    or,    in    other    words,    is   interested    as    revcr- 


{k)  Sec,   on    tliis  puirit,  Lush,   Practice,  3rd   ed.,    151  ;  Addison,  Torts,  3rd 
■«d.,  278-280. 


356  PARTIES     TO    ACTIONS. 

sioner.  (/)  In  such  a  case,  acts  which  are  an  injury  to  one 
of  the  persons  interested  in  the  property  may  be  no  injury, 
or  a  different  injury  to  the  other.  The  general  rule,  there- 
fore, under  consideration  (;;/)  gives  rise  to  the  two  follow- 
ing subordinate  rules  : — 

[333]  SUBORDINATE   RULE   I. 

The  person  to  sue  for  any  interference  with  the  immediate 
enjoyment  or  posscssiojt  of  land  or  other  real  property 
is  the  person  who  has  possession  of  it,  and  no  one  can  sue 
merely  for  sncJi  an  interferetice  who  has  not  possession. 

Any  one,  therefore,  who  is  in  possession  of  land,  (n) 
can  sue  for  a  trespass,  i.  e.,  an  interference  with  his  right 
to  the  immediate  enjoyment  or  undisturbed  possession  of 
the  property,  or  to  use  a  convenient  expression,  can  bring 
trespass.  (<?) 

Every  entry  upon  land  in  the  occupation  of  another 
constitutes  a  trespass,  for  which  (in  the  absence  of  legal 
justification)  an  action  is  maintainable.  The  word  tres- 
pass, further,  has  a  wider  signification  in  legal  than  in 
popular  language.  "  If,"  for  example,  "  one  man  throws 
stones,  rubbish,  or  other  materials  of  any  kind  on  the  land 
of  another,  or  allows  his  cattle,  poultry,  or  domestic  ani- 
mals to  go  upon  another's  man's  land,  this  is  a  trespass  for 
which  he  is  responsible  in  damages  unless  he  can  show 
that  his  neighbor  was  bound  by  contract  or  prescription 

(/)  The  term  reversioner  is  used  aS  a  convenient,  though  not  strictly  correct, 
description  of  any  person  who,  not  being  in  possession  of  land,  has  future  inter- 
est in  it. 

{m)  Taken  in  combination  with  Rule  78. 

(n)  The  expression  "land  "  is  used  for  the  sake  of  brevity  ;  but  it  must  be 
borne  in  mind  that  "  real  property  "  includes  many  things — <f.^.  .houses — not 
popularly  included  under  the  word  land,  and  that  it  also  includes  rights  over 
real  property,  e.  g.,  rights  of  way. 

{o)  Trespass  lies  for  any  direct  and  immediate  interference  with  the  posses- 
sion of  land,  and  is,  therefore,  the  form  of  action  most  frequently  referred  to  in 
this  and  the  following  pages  with  regard  to  the  right  of  action  possessed  by  the 
person  in  possession  of  land  ;  but  there  are  cases  where  the  injury  is  indirect^ 
or  where,  for  other  reasons,  trespass  will  not  lie,  still  the  same  general  principle 
applies.  The  person  in  possession  must  sue  for  interference  with  the  right  to- 
the  immediate  enjoyment  of  property. 


GENERA  L    RULES.  357 

to  fence  for  his  benefit.  (/)  To  pour  water  out  of  a  pail 
into  another  man's  yard,  or  to  fix  a  spout,  so  as  to  dis- 
charge water  upon  another  man's  land,  or  suffer  filth  to 
issue  through  a  boundary  wall,  and  to  run  over  another's 
close  or  yard  without  his  leave  or  permission,  is  a 
trespass  unless  a  right  of  way  over  the  adjoining  [334I 
close,  or  a  right  to  discharge  water  upon  it,  or  a 
right  for  the  passage  of  waste  water  and  refuse  through 
it,  has  been  gained."  {q)  (r)  So,  if  the  occupier  is  turned 
out  of  his  dwelling-house,  of  which  he  has  possession,  this 
amounts  in  point  of  law  to  an  injury  to  the  house,  £.nd  may 
be  sued  for  as  a  trespass,  {s) 

The  owner  in  possession  of  his  land  may,  of  course, 
bring  trespass,  but  he  sues  in  virtue,  not  of  his  ownership, 
but  of  his  possession  ;  and  the  action,  therefore,  may  be 
brought  by  a  tenant  in  possession,  though  he  be  only  a 
tenant  at  will,  or  (though  this  was  at  one  time  doubted), 
a  mere  tenant  on  sufferance.  (/)  Nor  is  it  necessary  that 
the  person  in  possession  should,  in  order  to  support  this 
action  against  a  wrong-doer,  have  any  title  to  the  land 
whatever ;  for  actual  possession  as  owner  is  presumptive 
proof  of  property,  and  is  sufficient  against  a  mere  stranger 
who  can  not  show  any  better  title  or  authority ;  {u)  nor 
can  the  defendant  in  such  an  action  set  up  as  against  the 
person  actually  in  possession  the  right  of  a  third  party,  in 
order  to  rebut  the  mere  possessory  right  of  the  plaintiff, 
unless  the  defendant  can  show  that  he  himself  acted  by 
or  under  the  authority  of  such  third  person,  {x)  If,  that 
is  to  say,  A.  is  in  actual  possession  of  land  on  which  X.,  a 
stranger,  with  no  title  whatever,  trespasses,  X.  can  not 
defend  himself  in  an  action  brought  by  A.  for  the  trespass, 

.  (/)  Cox  V.  Burl.i.lge.  13  C.  15.,  N.  S..  430;  32  !-•  J-  89.  C.  V.  ;  Mason  v. 
Keeling.  I  Ld.  Raym.  60S  ;  Dawtry  v.  Huggins,  Clayton,  32. 

(y)  Rcynolcis  v.  Clarke,  2  Lil.  Raym.  1399. 

(r)  Addison.  Torts,  3rd  ed.,  256. 

(j)  Merilon  v.  Coombes,  9  C.  B.  972 ;  19  L.  J.  33'i.  C.  P. 

(()  Heydcn  v.  Smith,  13  Coke,  67  ;  White  v.  Bailey,  10  C.  R.  227  ;  30  L.  J. 
253,  C.  P.  ;  Hacon,  Abr.,  T'-espass,  C.  3. 

(m)  Graham  v.  Peat,  i  Kast,  244;  Purncll  v.  Young,  3  M.  &  W.  288;  Browne 
▼,  iJawson,  12  A.  &  K.  624. 

U)  Beitie  V.  P.caumont.  16  East,  33     Kullen,  Pleadings.  3rd  ed.,  417. 


358  PARTIES     TO    ACIIONS. 

by  showino^  that  some  third  person,  M.,  was  entitled  to 
possession,  (j)  The  phiintiff  was  possessed  of  glebe 
[335]  land,  under  a  lease  void  by  the  statute  13  Eliz.  c.  20, 
and  it  was  held,  {-)  that  he  .might  maintain  trespass 
against  a  wrong-doer,  on  the  ground  that  any  possession 
is  legal  possession  against  a  wrong-doer;  for  it  is  an 
established  maxim  that  "  trespass  is  a  possessory  action, 
founded  merely  on  the  possession,  and  it  is  not  necessary 
that  the  right  should  come  in  question."  {a) 

The  occupation,  moreover,  of  a  servant  or  agent  is  the 
possession  of  his  master  or  employer,  and,  it  would  seem, 
is  not  the  possession  of  the  servant.  Where  a  servant 
was  put  into  occupation  of  a  cottage,  and  had  less  wages 
on  this  account,  but,  nevertheless,  did  not  occupy  it  as  a 
tenant,  it  was  held,  that  the  master  might  bring  an  ac- 
tion, treating  the  occupation  as  his  own,  for  that  "  this 
was  the  occupation  of  the  plaintiff  through  the  medium 
of  his  servant,  which  is  in  law  the  virtual  occupation  of 
the  master  and  not  of  the  servant."  {b) 

On  the  other  hand,  it  is  absolutely  essential  to  the 
maintenance  of  the  action  that  the  plaintiff  should  have 
possession,  and  possession  means  exclusive  possession,  {c) 
Hence,  commissioners  of  sewers,  who  had  as  such  com- 
missioners erected  a  wall,  have  been  held  incapable  of 
suing  a  person  who  broke  it  down,  because  the  authority 
given  them  did  not  vest  in  them  a  possessory  interest,  {d) 
But  when  contractors  for  making  a  navigable  canal  had, 
with  the  permission  of  the  owner  of  the  soil,  erected  a 
dam  upon  his  close  for  the  purpose  of  completing  their 
work,  they  were  considered  to  have  sufficient  possession 


(  v)  Of  course,  if  X.  acted  under  M.'s  authority,  he  can  show  this  in  defense  ; 
but  this  is,  in  fact,  to  show  that  X.  did  not  commit  a  trespass,  and  is  in  no  way 
inconsistent  with  the  principle  that  mere  possession  is  sufficient  basis  on  which 
to  maintain  an  action  against  a  wrong-doei. 

(s)  Graham  v.  Peat,  i  East,  243. 

{a)  Lambert  v.  Stroother,  Willes,  221  ;  Asher  v.  Whillock,  L.  R.  i,  Q.  B  I 
5,  judgment  of  CocKBURN,  C.  J. 

{b)  Bertie  v.  Beaumont,  16  East,  36,  judgment  of  Grose,  J. 

(O  See  Hill  v.  Tupper,  32  L.  J.  217,  Ex.  ;  2  M.  &  C.  121  ;  and  ante. 

{d )  Newcastle  v.  Clark,  2  Moore,  266. 


GENERAL    RULES.  359 

to   enrjble  them  to   maintain   trespass   against   a   wrong- 
doer, {r) 

"  The  dam,"  say  the  Court  in  the  latter  case,  "  was 
erected  by  the  plaintiffs  at  their  own  expense,  and 
with  their  own  materials,  upon  the  locus  in  quo,  [336] 
with  the  consent  of  the  owner  of  the  soil,  for  a 
special  purpose.  Until  that  purpose  was  completed  the 
plaintiffs  were  entitled  to  the  possession  of  the  dam.  Now, 
it  is  perfectly  clear  that  the  person  in  possession  of  prop- 
erty, whether  rightfully  or  wrongfully,  may  maintain 
trespass  against  a  mere  wrong-doer.  Indeed,  if  they  had 
any  other  than  a  partial  or  subordinate  inte]"est  in  the 
dam,  trespass  is  the  only  proper  remedy.  The  case  is 
distinguishable  from  that  of  the  Duke  of  Newcastle  v. 
Clark,  (/)  for  there  the  commissioners  of  sewers  had  no 
possession,  but  had  a  mere  right  to  enter  upon  the  locus 
in  quo,  and  to  do  certain  acts.  In  Welch  v.  Nash,  (^)  the 
posts  were  put  upon  the  lands  of  another  without  his 
permission  ;  and  yet  it  was  held  that  the  party  who  put 
them  there  might  recover  in  trespass  for  taking  them 
away,  where  the  general  issue  only  was  pleaded.  Now, 
that  could  be  only  on  the  ground  that  the  posts  were  the 
property  of  the  plaintiff;  for  if  they  were  not  so  it  would 
have  been  a  good  defense  to  the  action."  {/i)  "Trespass, 
again,  will  not  lie  for  entering  into  a  pew  or  seat  in  a 
cliurch,  because  the  plaintiff  has  not  the  exclusive  posses- 
sion, the  possession  of  the  church  being  in  the  parson."  (i) 

Mere  occupation  does  not  of  itself  amount  to  posses- 
sion. Thus  the  occupation  of  a  servant  is,  as  before 
noticed,  not  his  possession,  and  he  can  not,  it  would  seem, 
maintain  trespass  ;  {/e)  and  the  following  case  well  illus- 
trates the  difference  between  occupation  and  possession. 
The   master   of    a   school,    who   had    possession   of   the 

(e)  Dyson  v.  Collick,  5  U.  &  Aid.  600. 
(/)  2  Moore,  226. 
(^)  8  Fast,  394. 

(A)  I)ysv<n  V.  Coilick,  5  B  &  Aid.  602,  603,  per  Curiam. 
(i)  .Stocks  V.  Booth.  I    T.  K.  428. 

(i)  Bertie  v.  Beaumont,  16  Kast,  33.  Comjjare  Wright  v.  Staverl,  2  E.  4 
E.  724     29  L.  J.,  161  (J.  \i. 


3C)0  PARTIHS     TO    ACTIONS. 

scho<^l-room,  on  being  dismissed  by  the  trustees,  gave 
lip  the  room  into  their  possession  ;  he  afterwards  re-en- 
tered and  occupied  it  for  eleven  days,  at  the  end  of  which 

time   he  was  forcibly  ejected  by  the  trustees.     It 
[l2>7^    ^""'^^  l^cld   that  he  ct)uld   not  maintain  trespass  for 

being  so  ejected,  or,  in  other  words,  that  his  occupa- 
pation  did  not  amount  to  ])rima  facie  possession  as  against 
the  trustees.  It  must  be  added,  to  explain  the  bearing  of 
the  case,  that  under  the  pleadings  the  trustees  relied  for 
their  defense  on  his  not  being  in  possession  of  the  room. 
"  Heath  V.  Milward,"  (/)  sa3^s  the  court,  "was  cited  in 
support  of  [the]  argument  [for  the  plaintiff].  We  think 
that  case  well  decided,  and  agree  that  the  question  of 
title  is  not  to  be  raised  on  a  plea  of  possession  ;  we  agree 
also  that  this  action  is  possessory,  and  that  possession  is 
sufficient  for  the  plaintiff  in  trespass  against  a  wrong-doer. 
But  these  elementary  principles  must  be  understood 
reasonably.  A  mere  trespasser  can  not,  by  the  very  act 
of  trespass,  immediately  and  without  acquiescence,  give 
himself  what  the  law  understands  by  possession  against 
the  person  whom  he  ejects,  and  drive  him  to  produce  his 
title,  if  he  can  without  delay  reinstate  himself  in  his 
former  possession.  Here,  by  the  acquiescence  of  the 
plaintiff,  the  defendants  had  become  peaceably  and  law- 
fully possessed  as  against  him  ;  he  had  re-entered  by  a 
trespass :  if  they  had  immediately  sued  him  for  that 
trespass,  he  certainly  could  not  have  made  out  a  plea 
denying  their  possession.  What  he  could  not  have  done 
on  the  ist  [of]  July,  he  could  as  little  have  done  on  the 
nth;  for  his  tortiously  being  on  the  spot  was  never 
acquiesced  in  for  a  moment ;  and  there  was  no  delay  in 
disputing  it.  But,  if  he  could  not  have  denied  their  pos- 
session in  the  action  supposed,  it  follows  clearly  that  they 
might  deny  his  in  the  present  action,  for  both  parties 
could  not  be  in  possession."  {m) 

From  the  fact  that  trespass,  or  any  other  action  for 
interference  with  the  immediate  enjoyment  of  land,  must 

(/)  2  Bing.  N.  c.  98. 

'm)  Browne  v.  Dawson,  12  A.  it  E.  628,  629    per  Lord  Denman,  C.  J. 


GENERAL    RULES.  ^6i 

be  .  ruught  by  a  person  who  is  either  actually  or  con- 
structively {i.  e.,  by  means  of  his  servants  or  agents)  in 
possession,   and  that  two  persons  can   not  at  the 
same  time  be  in  adverse  possession,  (;z)  it  follows   [338] 
that  no  one  can  bring  an  action  of  trespass  who  is 
not  in  possession,  or,  to  put  the  same  thing  in  a  somewhat 
different  point  of  view,  that  the  mere  right  to  possession 
will  not  support  an  action  for  trespass  to  land.  {0)     "  The 
person  [for  example]  in  whom  the  freehold  of  land  is,  can 
not  maintain  an  action  of  trespass  for  an  injury  done  to 
the  land  whilst  it  was  in  the  possession  of  another.     An 
heir-at-law  may  make  a  lease  of  land  descended  upon  him 
before  he  has  entered  thereupon  ;  but  he  can  not  maintain 
an  action  of  trespass  before  he  has  by  entry  acquired  the 
possession  in  fact  [and,  in  like  manner],  a  parson  can  not 
maintain  an  action  of  trespass     ....     for  an  injury 
done  to  his  church,  churchyard,  or  glebe,  before  he  is  in- 
ducted,   it   being   the    induction    which    gives   him    the 
possession  in  fact  of  these  things."  (/)     And  generally  no 
one,  whatever  his  title  or  interest  in  land,  can  bring  an 
action  of  trespass  before  entry,  /.  ^.,  before  he  has  obtained 
possession.     It  can  not,  therefore,  be   maintained    by  a 
person  who  has  purchased  an  interest  in  land,  nor  by  a 
mortgagee  not  in  possession,  nor  by  a  devisee,  {q)  a  lessee, 
(r)  an  assignee,  {s)  or  an  executor  or  administrator,  (j) 
before  entry,  {u) 

The  most  important  result  of  the  principle  that   [339] 

(m)  See  Browne  v.  Dawson,  12  A.  &  E.  629.  The  possession  of  land  can 
of  course  be  vested  in  two  or  n^ore  persons,  e.  g.,  as  tenants  in  common  ;  but 
there  can  not  be  two  parties,  each  having  a  separate  possession  of  the  same 
land.  The  trustees,  for  instance,  and  the  schoolmaster,  in  the  case  of  Browne 
V.  Dawson,  could  not  each  at  the  same  time  have  possession  of  the  room. 

io)  Compare  and  contrast  with  this  the  rule  as  to  actions  of  trespass,  •© 
■  goods  f)r  of  trover.     See  post. 

(/>)  Bacon,  Abr.,  Trespass,  C.  3.  See  Barnctt  v.  Earl  of  Guildford,  ir 
Exch.  19  ;  24  L.  \.  281,  Ex. 

(y;  I'lowd.  142.  (r)  Wlieeler  V.  Montefiore,  2  Q.  B.  133. 

(s)  Co^k  V.  Harris,  i  Kaym.  367. 

(0  Barnetl  v.  Guildford,  il  Kxch.  32.  per  Parke,  H. 

(m)  The  fact  that  the  morli^aj;ee  not  in  possession  can  not  brinj;  trt.^pass  de- 
serves notice,  since,  from  the  rule  that  no.aciion  can  be  l)r()uy;ht  cxcipt  for  the 
infringement  of  a  common  law  right  (see  «///<•),  it  might,  perhaps,  bo  erroneously 
inferred  that    the  mortgagee,  who   is  the  legal  owner  of   ihc  land,  and  not  the 


362  PARTIES     TO    ACTIONS. 

actions  for  interference  with  the  use  or  immediate  en- 
jo)-ment  of  real  property  must  be  brought  by  the  person 
in  possession,  is,  that  when  hind  is  in  the  hands  of  a 
tenant,  the  person  to  sue  for  a  trespass  is  the  tenant,  and 
not  the  landlord.  Thus  the  latter  can  not  sue  a  stranger 
tor  merely  entering  on  his  land  whilst  in  the  occupation 
of  a  tenant,  even  though  the  entry  be  made  in  exercise  of 
an  alleged  right  of  way.  For  such  an  act,  during  the 
tenancy,  is  not  necessarily  injurious  to  the  reversion,  {x) 
and  can  not  be  sued  for  by  the  landlord  as  a  trespass, 
since  he  is  not  in  possession ;  nor,  it  would  seem,  has  he 
the  right,  in  the  absence  of  any  agreement,  to  bring  an 
action  in  the  name  of  the  tenant.  It  has  further  been 
held,  that  where  A.  leased  land  to  B.,  and  during  the  con- 
tinuance of  the  lease,  X.  committed  a  trespass  on  the  land,. 
A.  could  not,  after  resuming  possession  of  the  land,  bring 
an  action  against  X.  {y)  "  The  act  here  complained  of," 
says  Wilde,  C.  J.,  "  was  not  a  trespass  against  the  plain- 
tiff, who  was  not  in  possession  at  the  time  it  was  done, 
and,  in  the  absence  of  all  authority,  I  should  say  that  [the 
defendant]  could  not  be  held  a  trespasser  [against  any 
person  who]  came  into  possession  after  the  trespass  was 
committed."  (z) 

[340]  SUBORDINATE  RULE  II. 

For  any  permanent  injury  to  the  value  of  land,  or  other  reat 
property,  i.  e.,  for  any  act  ivhich  interferes  tvith  the  fu- 
ture enjoyment  of,  or  title  to,  the  land,  an  action  may  be 
brought  by  the  person  entitled  to  a  future  estate  in  it, 
i.  e.,  by  the  reversioner,  {a) 

mortgagor,  was  the  right  person  to  sue  for  all  injuries  to  the  land  ;  the  .eason 
of  course,  why  the  mort<:;agee,  who  is  not  in  possession,  can  not  bring  trespass, 
whilst  the  mortgagor,  who  is,  can,  is,  that  the  action  depends,  not  upon  the  own- 
ership, but  upon  the  possession  of  land,  and  that  therefore  the  mortgagor,  and 
not  the  mortgagee,  is  the  person  by  whom  it  can  be  brought.  "  Rut  incorporeal 
hereditaments,  which  do  not  admit  of  actual  entry,  vest  immediately,  and, 
therefore,  a  lessee  of  tithes  may  maintain  trespass  for  taking  them  away  im- 
mediately they  are  set  out."     Lush,  Practice,  3rd  ed.,  151,  citing  Wentw.  290. 

{x)  Baxter  v.  Taylor,  4  B.  &  Ad.  72. 

(y)  Pilgrim  v.  Southampton  and  Dorchester  Rail.  Co.,  18  L.  J.  330,  C.  P. 

(z)  Ibid.,  332,  judgment  of  Wilde,  C.  J. 

(a)  See  Lush,  Practice,  3rd  ed.,  154. 


GENERAL    RULES.  363 

Though  the  person  actually  in  possession  of  real  prop- 
erty can  alone  maintain  an  action  for  mere  interferences 
with  the  actual  enjoyment  of  it,  a  man  {e.  g.,  a  landlord) 
who  is  not  in  possession  can  maintain  an  action  for  any 
act  which  injures  his  reversionary  interest  in  the  land. 
The  landlord  or  reversioner  must,  in  order  to  support 
such  an  action,  show  that  the  injury  complained  of  is  of  a 
permanent  nature,  and  deteriorates  the  marketable  value 
of  the  property,  so  that  if  he  were  to  sell  the  land  it 
would  fetch  less  money  in  the  market.  To  put  the  same 
thing  in  another  form,  the  landlord  or  reversioner  can  sue 
where  the  act  complained  of  would  lessen  the  value  of  the 
property  on  the  expiration  of  the  tenancy  or  of  the  estate, 
on  the  determination  of  which  the  land  will  come  into  his 
possession,  {b)  Suppose,  for  example,  that  A.  owns  the 
fee  simple  of  certain  land,  and  lets  it  to  B.  for  twenty 
years,  he  can  not  sue  X.  for  any  damage  to  the  land 
which  is  of  a  merely  temporary  nature,  but  he  can  sue  X. 
for  any  act  which  affects  its  permanent  value,  or,  in  other 
words,  lessens  the  worth  of  A.'s  interest  in  it.  Any  act 
which  throws  a  doubt  upon  A.'s  title  is  an  act  of  this  de- 
scription. "  Thus  the  removal  of  the  smallest  particle  of 
soil  must  in  general  be  esteemed  an  injury  to  the  rever- 
sion, because  it  tends  to  alter  the  evidence  of  title,"  {c) 
but  a  mere  entry  upon  the  land  is  not  such  an  injury,  {d) 
"  To  entitle  a  reversioner  to  maintain  [an]  action,  it  [is] 
necessary  for  him  to  allege  and  prove  that  the  act 
complained  of  was  injurious  to  his  reversionary  in-  [341] 
terest,  or  that  it  should  appear  to  be  of  such  a  per- 
manent nature  as  to  be  necessarily  injurious.  A  simple 
trespass,  even  accompanied  with  a  claim  of  right,  is  not 
necessarily  injurious  to  the  reversionary  estate."  {£■) 

It  is  often  difficult  to  decide  whether  a  gi^  -^n  act  is 
or  is  not  an  injury  to  the  reversion.  Where,  toi  example, 
light  is  obstructed,  the  owner  can  sue   becau:  '■  the  ac» 

(/>)  .See  Arldison.  Torts,  3ifl  cd.,  278,  279. 

(c)  Alston  V.  Scales,  q  Hing.  4,  per  Curiam. 

(rf)  Haxtcr  V.  Taylor,  4  H.  &  Ad.  72. 

{f)  Jiaxtcr  V.  Taylor,  4  H.  &  Ad.  7O,  per  Pakkk,  J. 


364  PARTfES     TO    ACTIONS. 

may  be  a  denial  of  his  rioht  to  windows,  and  thus  preju- 
dice his  reversionary  interest ;  (/)  but  where  smoke  was 
allowed  to  issue  from  a  chimney  (the  erection  of  the 
chimney  itself  not  bcino-  a  nuisance,  but  only  the  use 
made  of  it),  it  was  held  that  the  reversioner  of  adjoining 
premises  had  no  ground  of  action,  although  his  t^^nants 
had  given  notice  to  quit  in  consequence,  and  the  '^icmises 
would,  if  the  nuisance  were  continued,  sell  for  Jess,  {g) 
"After  considering  the  authorities,"  say  the  •  -urt,  "  we 
are  of  opinion,  that  since  in  order  to  give  a  i '.versioner 
an  action  of  this  kind  there  must  be  some  ii.jury  done 
to  the  inheritance,  the  necessity  is  involved  oi  the  injury 
being  of  a  permanent  character.  The  earliest  instances 
of  such  actions  are  [for]  cutting  trees,  subverting  the 
soil,  erecting  a  dam  across  a  stream  so  as  to  cause  it  to 
flow  over  the  plaintiffs  land.  In  the  two  former  cases 
the  thing  done  was  not  removeable  or  remediable  during 
the  term.  In  the  third  it  was,  but  being  of  a  permanent 
character  it  was  to  be  assumed  that  it  would  remain,  and 
therefore  was  treated  as  an  injury  to  the  inheritance. 
The  decision  in  Jesser  v.  Gifford  {h)  falls  within  the  same 
principle :  a  window  was  obstructed,  the  obstruction  was 
of  a  permanent  character,  and  would  remain  unless  some- 
thing was  done  to  remedy  the  evil.  Tucker  v. 
[342]  Newman  {i)  belongs  to  the  same  class.  Now,  the 
building  erected  in  this  case  did  not  injure  the 
plaintiffs  inheritance,  but  it  is  said  that  the  use  made  of 
it  did.  The  real  subject-matter  of  complaint,  therefore,  is 
not  the  erection  of  the  building,  but  causing  smoke  to 
issue  from  it.  If  the  fires  had  not  been  made  by  the 
defendant,  he  could  not  have  been  sued  for  an  injury 
either  to  the  possession  or  the  inheritance,  {k)  Now, 
making  the  fires  and  causing  smoke  to  issue  was  not  an 
act  of  a  permanent  nature.      It  is  very  like  the  case  of 

(/)  Metropolitan  Association  v.  Petch.  5   C.  B,,  N.  S.,  504  ;  27  L.  J.  33c 
C.  P. 

{g)  Simpson  v.  Savage,  i  C.  B.,  N.  S.,  347  ,  26  L.  J.  50,  C.  P. 

{k)  4  Burr.  2141. 

(t)  II  A.  &  E.  40. 

\k)  Rich  r.  Basterfield.  4  C.  B.  783  ;  16  L.  J.  273    C.  P. 


GENERAL     RULES.  365 

Baxter  v.  Taylor,  (/)  where  a  person  trespassed,  asserting 
a  right  of  way,  and  is  not  distinguishable  from  Mumford 
V.  Oxford,  &c.,  Railway  Company,  (;//)  where  the  action 
was  brought  against  the  defendants  as  occupiers  of  cer- 
tain sheds,  for  making  noises  there  which  caiised  the 
plaintiff's  tenants  to  give  notice  to  quit.  The  real  com- 
plaint by  the  reversioner  is,  that  he  fears  the  defendant, 
or  some  other  occupier  of  the  adjoining  premises,  will 
continue  to  make  fires  and  cause  smoke  to  issue  from  the 
chimney,  and  if  the  reversion  would  sell  for  less,  that  is 
not  on  account  of  anything  that  has  been  done,  but  the 
apprehension  that  something  will  be  done  at  a  future 
time.  According  to  the  authorities  we  feel  bound  to  say, 
that  this  is  not  such  an  injury  as  will  enable  the  rever- 
sioner to  maintain  an  action."  {ri)  In  a  case  (<?)  again 
alluded  to  in  the  foregoing  judgment,  it  was  held  that  the 
landlord  of  a  house  could  not  maintain  an  action  for 
alleged  injury  to  his  reversion  by  reason  of  the  noise 
made  by  the  defendants  hammering  in  the  adjoining 
premises  during  the  tenancy,  although  less  rent  was  paid 
by  the  tenant  in  consequence  of  such  noise. 

On  the  other  hand,  an  obstruction  to  a  way  may  be  ot 
such  a  character  as  to  be  an  injury  to  the  reversion.  "  It 
is  not  to  be  denied,"  it  is  said  by  Maule,  J.,  "  that  the 
erection  of  a  wall  across  the  way, — assuming,  of 
course,  that  there  was  no  contract  as  between  the  [343] 
tenant  of  the  land  and  the  defendant, — would  be  an 
injury  to  the  reversion,  although  such  wall  might  be  pulled 
down  before  the  plaintiff  became  entitled  to  the  actual 
possession  of  the  land  ;  and  I  can  not  doubt  that  there 
might  be  such  a  locking  and  chaining  of  a  gate  as  would 
amount  to  as  permanent  an  injury  to  the  plaintifTs  rever- 
sionary interest  as  the  building  of  a  wall.  The  meaning 
of  the  allegation,  that  by  means  of  the  premises  the  plain- 
tiff was  greatly  injured  in  his  reversionary  estate  and  inter- 
est, is  not  that  the  injury  follows  as  a  consequence  of  law 

(y)  4  B,  &  Ad.  72. 

\m)  I  II.  &  N.  34  ;  25  L.  J.  265    Ex. 

(«)  Simpson  v.  Savnge,  26  L.  J.  53,  C.  P.,  per  CURIAM. 

(0)  Mumford  v.  Oxford.  &c.,  Kail.  Co.,  25  L.  J.  265,  Ex. ;   I  H.  &  N    34, 


366  PARTIES     TO    ACTIONS. 

from  what  is  previously  stated — like  an  allegation  that  J, 
S.  was  seized  in  fee,  and  that  he  died  so  seized,  whereby 
J.  T.,  his  son  and  heir-at-law,  became  entitled  ;  but  it  is  an 
allegation  of  a  matter  of  fact,  as  was  lately  held  in  this 
court  in  the  case  of  Brown  v.  Mallett,  {p)  which  is  for  the 
jury  to  find  or  not  according  to  the  evidence.  I,  there- 
lore,  think  upon  the  whole  that  the  declaration  is  suf- 
ficient." {q) 

The  same  act  which  mjures  the  landlord  or  reversioner 
IS  generally  also  an  interference  with  the  rights  of  the 
tenant.  When  this  is  so  the  landlord  and  tenant  have 
each  separate  rights  of  action,  and  may  be  entitled  to  dif- 
ferent amounts  of  damages.  "  In  the  case  [for  example] 
of  permanent  injuries  to  buildings  from  trespasses,  or  acts 
of  negligence  by  strangers,  the  tenant  is  entitled  to  sue  in 
respect  of  the  immediate  residential  injury,  and  the  rever- 
sioner in  respect  of  the  diminished  saleable  value  of  the 
property,  {r)  Where  trees  have  been  injured  by  a 
[344]  stranger,  the  lessor  and  lessee  may  both  sue  in 
respect  thereof,  the  lessor  for  the  damage  done 
to  the  body  of  the  tree,  the  lessee  for  the  loss  of  the  shade 
and  fruit."  {s)  (/)  AVhen  an  action  is  brought  for  injuries 
of  the  latter  kind,  the  damage  recoverable  by  the  rever- 
sioner is  the  value  of  the  timber  and  the  body  of  the  tree, 
whilst  the  damage  recoverable  by  the  tenant  must  be 
estimated  with  reference  to  the  value  of  the  shade  and 
fruit.  (//)  a  value  which  it  is  obvious  may  fall  far  short  of 
the  value  of  the  tree. 

Personal  property. — "  Personal  property  [by  which  is 
here  meant  goods  or  things  moveable]  is  essentially  the 

(/)  5C.  B.  59q. 

{q)  Kidgill  v.  Moore,  9  C.  B.  378,  379,  per  Maule,  J.  There  are  some  acts, 
such  as  catting  down  trees,  which  necessarily  affect  the  interest  of  the  rever- 
sioner ;  others,  such  as  a  mere  trespass,  which  can  not  affect  his  interest  ;  and 
others  which  may  or  may  not  be  injuries  to  him.  If  he  brings  an  action  for 
acts  of  the  last  kind,  he  must  distinctly  show  on  the  face  of  the  declaration,  anc" 
of  course  prove  at  the  trial,  that  they  are  a  cause  of  damage  to  him.  Metropoli 
tan  Association  v.  Pelch,  27  L.  J.  332,  C.  P.,  judgment  of  WiLLES  J. 

(r)   H()^king  v.  Phillips,  3  Exch.  16S  ;   18  L.  J.  i.  Ex. 

(j)  Beddingfield  v.  Onslow,  3  Lev.  209. 

(/)  Addison,  Torts,  3rd  ed.,  279. 

(«)  Ibid.,  302. 


GENERAL    RULES.  3^7 

subject  of  absolute  ownership,  and  can  not  be  held  for 
any  estate.  The  property  in  goods  can  only  belong  to 
and  be  vested  in  one  person  at  one  time.  .  .  .  Lands 
may  be  so  conveyed  that  several  persons  may  possess  in 
them,  at  the  same  time,  several  distinct  vested  estates  of 
freehold,  one  of  them  being  in  possession,  the  others  in 
remainder,  or  the  last,  perhaps,  being  in  reversion.  But 
the  law  knows  no  such  thing  as  the  remainder  or  rever- 
sion of  a  chattel.  It  recognizes  only  the  simple  property 
in  goods,  coupled  or  not  with  the  right  of  immediate 
possession."  {x) 

Any  interference  with  rights  over  a  chattel  or  goods 
is  an  interference  with  the  rights  either  of  a  person 
entitled  to  immediate  possession,  or  of  a  person  entitled  to 
future  possession,  i.  e.,  to  possess  the  chattel  or  goods  at 
some  future  time,  or  with  the  rights  of  both  persons.  A., 
for  example,  is  owner  of  a  horse,  and  lets  it  for  a  month 
to  B.  If  X.  merely  takes  it  away  from  B.  during  the 
month,  he  interferes  with  B.'s  right  to  the  immediate  pos- 
session. If  X.  permanently  injures  the  animal,  he  inter- 
feres with  A.'s  right  to  possess  it  undamaired  at  the 
end  of  this  month,  i.  e.,  with  A.'s  right  to  future  pos-  [345] 
session,  or,  as  it  may  be  conveniently  (though  not 
quite  accurately)  termed,  A.'s  reversionary  interest  in  the 
chattel,  {y)  X.'s  act  is,  moreover,  in  this  case,  an  interfer- 
ence as  well  with  B.'s  right  to  immediate  possession,  as 
with  A.'s  reversionary  interest,  or  right  to  future  posses- 
sion, {z) 

{x)  Williams,  Personal  Property,  7ih  ed..  ch.  ii.  See  the  whole  of  this 
chapter  for  the  view  taken  throughout  this  and  the  following  pages  with  refer- 
ence to  actions  for  injuries  to  personal  property. 

{y)  This  expression  as  applied  to  goods  is,  though  not  strictly  accurate,  con- 
venient, and  sanctioned  hy  good  authorities  (Bulien,  Ple.ulings,  3rd  cd.,  395  ; 
•Mcars  v.  London  and  South-Western  Rail.  Co.,  11  c:.  P.,  N.  S.,  850  ;  31  L.  J. 
220.  C.  1'.). 

(s»  The  terms,  right  of  possession,  right  to  possess,  right  to  po38 'ssion,  arc, 
in  conformity  with  general  usage,  used  as  synonymous.  Strictly  speaking,  a 
ri'^ht  of  possession  is  any  right  which  ari.ses  from  the  fact  of  possession.  A 
right  to  possession  is  the  right  to  possess,  which  may,  no  doubt,  arise  from  po:*- 
session,  hut  may  also  arise  from  other  circumstance-.  It  need,  perhaps,  scarcely 
be  noted  that  the  right  to  possess  a  ch.ittel,  ci;hcr  immediately  or  at  some 
future  time,  includes  in  it  tV  r  right  to  possess  it  uninjured. 


368  PARTIES     TO    ACTIONS. 

The  general  rule  under  ccmsideration  gives  rise,  wheu 
applied  to  personal  property  or  goods,  to  the  two  follow- 
ing subordinate  rules  : — 

SUBORDINATE  RULE  III. 

^  I  ny  person  may  sue  for  an  interference  with  the  possession 
of  goods,  who,  as  against  the  defendant,  has  a  right  to 
the  immediate  possession  of  such  goods ;  and  no  person 
can  sue  for  what  is  merely  such  an  interference  tvho  has 
not  a  right  to  the  immediate  possession  of  the  goods. 

A  wrong-doer  may  interfere  with  another  person's 
right  to  undisturbed  possession  of  goods  in  various  ways. 
X.,  for  example,  strikes  A.'s  horse,  or  removes  it  out  of  a 
field  in  which  it  is  placed,  X.,  in  this  case,  commits  a 
trespass.  X.,  again,  borrows  the  horse  from  A.,  and 
refuses  to  give  it  back  on  demand.  He  is  then  gudty  of 
a  wrongful  detainer,  and  liable  to  an  action  of  detinue.  X. 
takes  the  horse  and  sells  it.  In  this  case  he  corr'tnits  an 
act  of  what  is  technically  called  conversion,  which 
[346]  may  be  defined  as  "  a  wrongful  interference  with 
goods  by  taking,  using,  or  destrojnng  them  incon- 
sistent with  the  owner's  or  other  persons  right  of  immedi- 
ate possession,"  {a)  and  is  liable  to  an  action  of  trover. 
In  each  instance  the  wrong-doer  is  guilty  of  an  interfer- 
ence with  another  person's  right  of  possession,  {b)  and  in 
determining  who  is  the  person  who  ought  to  sue  for  such 
an  interference,  it  is  unnecessary  to  enter  into  the  subtle 
distinctions  between  trespass  to  goods  and  trover  or 
between  trover  and  detinue,  {c)  The  plaintiff  has  often  a 
choice  as  to  which  of  these  actions  he  will  bring.  They 
are  all  brought  for  interferences  with  his  right  to  immedi- 

(tf)  Compare  Bullen,  Pleadings,  3rd  ed.,  290;  Burroughcs  v.  Bayne,  5  H. 
&  N.  296  ;  29  L.  J.  185,  Ex.  :  Pillot  v.  Wilkinson,  2  H.  &  C.  72  ;  32  L.  J.  201, 
Ex.  ;  3  H.  &  C.  345  ;  34  L.  J.  22,  Ex.  (Ex.  Ch.). 

(3y  Compare  Fouldes  v.  Willougliby,  8  M.  &  W.  540 ;  Leame  v.  Bray,  3 
East,  593  ;  Aldison,  Torts,  3rd  ed.  307-310. 

{c)  Compare  Selwyn,  N.  P.,  13th  ed.,  581,  1276  ;  Burroughes  v.  Bayne,  5  11, 
&  N.  2q6. 


GENERAL     RULES.  369 

ate  possession,  or  are,  in  other  words,  possessory  actions, 
and  indeed,  "  there  is  no  action  in  the  law  of  England  by 
which  property  in  goods  or  land  [as  distinguished  from 
the  right  to  possession,  either  immediate  or  future]  is 
alone  decided."  {d') 

Trover,  as  being  the  main  action  for  injuries  to  goods, 
is  that  chiefly  referred  to  in  the  following  pages. 

The  right  to  bring  trover  or  trespass  is  often  said  to 
depend  upon  the  plaintiff's  property  in  the  goods.  Thus, 
it  is  laid  down,  that  "the  plaintiff  must  not  only  have  a 
right  of  property,  but  a  right  of  possession  also,  and  unless 
both  these  rights  concur,  the  action  will  not  lie,"  ie)  or  in 
somewhat  different  language,  that  the  plaintiff  in  trover 
must  either  have  possession  or  a  general  or  special 
property.  (/) 

These  and  similar  statements,  though  accurate  in  the 
sense  in  which  they  are  employed,  may  suggest 
that  the  right  to  maintain  trover,  which  is  merely  a  [347] 
possessory  action,  depends,  not  upon  the  right  of 
possession,  which  is  the  right  violated,  but  upon  the  right 
of  property  or  ownership.  The  following  is,  it  is  sub- 
mitted, the  simplest  account  of  the  ground  on  which  the 
plaintiff's  right  to  sue  rests :  "  The  property  in  the  goods 
is  that  which  most  usually  draws  to  it  the  right  of  pos- 
session, and  the  right  to  maintain  an  action  of  trover  is, 
therefore,  often  said  to  depend  on  the  pla,intiff 's  property 
\\\  the  goods.  The  right  of  immediate  possession  is  also 
sometimes  called  itself  a  special  kind  of  property,  {g)  but 
these  expressions  should  not  mislead  the  student.  The 
action  of  trover  tries  only  the  right  to  the  immediate  pos 
session,  which  .  .  .  may  exist  apart  from  the  prop- 
erty in  the  goods,"  or,  in  other  words,  the  ownership  of 
them.  {Ji) 

The  essential  pomt  being  the  existence  on  the  part  of 

(d^  Williams,  Personal  Property,  7th  ed.,  26. 

(e\  Selwyn,  N.  P.,  13th   ed.,  1288.     Compare   Wiihraliam   v.   Snow.  2  Wms, 
Saund.  47  e,  47  jj. 

(/)  See  Addison  v.  Round,  4  A.  &  E.  804,  judgment  of  Coi.KRiDGE,  J. 
Xg)  R<ig©rs  V.  Kennay,  9  Q.  B.  592  ;  15  L.  J.  381,  (^.  H. 
(A)   Wiiiiains,  P(!r-,<m.d  Proiicrly,  5tli  ed.,  2";. 
■'I 


j70  PARTIES     TO    ACTIONS. 

the  plaintiff  in  trover  of  a  right  as  against  the  defendant, 
to  the  immediate  possession  of  goods,  that  action  or 
trespass  may,  according  to  circumstances,  be  brought  by 
the  owner,  the  bailee,  or  the  mere  possessor,  without  title 
of  specific  goods. 

T/ie  owner. — Where  A.,  the  owner  of  a  chattel,  e.  g., 
a  watch,  has  retained  all  rights  of  property  in  it,  and 
amongst  others,  the  right  to  the  immediate  possession  of 
it,  he  may  maintain  trover  or  trespass,  according  to  the 
nature  of  the  wrong  done,  against  any  person  who  takes 
it,  or  keeps  it  out  of  his  possession,  or  otherwise  inter- 
feres with  his  right  to  possess  it  uninjured.  (?)  As  long 
as  the  watch  is  in  A.'s  own  possession,  there  can  be  no 
doubt  as  to  his  right  to  sue  any  one  who  takes  it  away. 
But  actual  possession  is  not  necessary  to  support  this 
action.  The  right  of  possession  is  sufficient.  A.,  for 
example,  loses  his  watch.  He  is  still  owner  of  it,  and  his 
ownership  entitles  him  to  possess  the  watch  when- 
[348]  ever  he  can  meet  with  it.  In  legal  phraseology,  the 
property  in  the  watch  "  draws  with  it  the  right  of 
possession,"  and  this  mere  right  to  possess  enable?  the 
owner  to  sue  any  person  who,  having  the  watch,  refuses 
to  give  it  up  to  him.  (/)  Suppose,  again,  A.  lends  the 
watch  to  a  friend,  B. ;  he  thereby  parts  with  Di't  posses- 
sion, but  he  does  not  part  with  the  ownership,  which 
includes  the  right  to  possession.  If,  therefore,  li.  converts 
the  watch,  A.  may  sue  him. 

A.  purchases  specific  goods.  From  the  /loment  that 
the  ownership  of  them  has  actually  passed  to  h;m,  although 
he  has  never  had  actual  possession  of  ifhem,  he  may 
bring  an  action  against  X.,  who  converts  i.Ucra,  {in)     Thus, 

{i)  For  a  contrast  between  absolute  property  Of  ownership  and  special 
property,  see  Webb  v.  Fox,  7  T.  R.  391,  398. 

(/)  Williams,  Personal  Property,  7th  ed.,  p.  2/.,  Y/ilbraham  v  Snow.  2 
Wms.  Saund.  47  a  ;  Manders  v.  Williams.  18  L.  J.   c'.?.  439.  Ex. ;  4   H.  &   N. 

339- 

(w)  Wilbraham  v.  Snow,  2  Wms.  Saund.  47  b.  ''t)atra:;t  Ibis  with  the  posi- 
tion of  the  purchaser  of  land,  who  can  not  bring  frripass  before  entry.  The 
distinction  is,  that  the  action  for  trespass  to  land  dejjends  upon  possession  ; 
the  action  of  trover  or  of  trespass  to  goods,  upon  foe  right  of  possession.  Se« 
ante. 


GENERAL    RULES.  37' 

'if    specific   goods    are    sold    on  credit,  and  nothing   is 
agreed  upon  as  to  the  time  of  delivering  the  goods,  the 
vendee  is  immediately  entitled  to  the  possession,  and  the 
right  to  possession  and  the  right  of  property   [i.  e.,  the 
ownership]  vest  in  him  at  once."  {n)     "  He  who  has  an 
absolute  or  general  property  [i.  e.,  is  owner]  may  support 
this  action,  although  he  never  had  the  actual  possession  ; 
for  it  is  a  rule  of  law,  that  the  property  of  personal  chat- 
tels draws  with  it  the  possession,  {o)  so  that  the  owner 
may  bring  either  trespass  or  trover  at  his  election  agair.st 
the  stranger   who  takes  them  away.     So,  where  a  man 
has  wreck  by  prescription  or  grant,  and  another  takes  it 
away,  he  may  bring    trover  or  trespass  before  seizure. 
....     Also,  where  A.  is  indebted  to  [B.]  and  [X.]  to 
A.,  and  it  is  agreed  between  them  that  [X.]  shall  give 
goods  in  his  possession,  which  were  the  goods  of 
A.,  to  [B.],  in  satisfaction  of  A.'s  debt,  if  [X]  con-   [349] 
verts  them,  [B.]  may  maintain  trover  against  him, 
although  he  never  had  possession  ;  for  by  agreement,  the 
right  of  property  was  in  him,  and   the  conversion  is  a 
wrong  to  him.     So,  where  an  executor  declares  upon  the 
possession  of  his  testator,  and  a  conversion  by  the  defend- 
ant after  death,  it  is  held  to  be  sufficient,  because   the 
property  is  vested  in  the  executor,  and  that  draws  after  it 
the  possession  of  law  "  {p)  {i.  e.,  the  right  to  possess). 

The  owner  of  goods  can  generally  bring  trover,  because 
ownership  primk  facie  and  usually  includes  the  right  to 
possess,  although  the  owner  may  divest  himself  of  this 
right  if  he  pleases  ;  in  which  case  he  loses  the  right  to 
bring  trover.  Since  A.'s  right  to  possess  goods  may 
depend  wholly  upon  his  being  their  owner,  the  question 
whether  a  person  can  bring  trover  often  resot'ves  itselt 
into  the  inquiry,  whether  he  has  become  owner  of  the 
property  in  certain  goods,  or,  to  employ  a  technical  expres- 
sion, whether  the  property  in  the   goods  has  passed  to 

(w)  2  Sclwyi),  N.  P.,  13th  ed.,  12S8  ;  Hloxam  v.  Sanders,  4  H.  &  C.  941. 
(0)  All  that  is  meant  by  this  technical  expression  is  that  ownersUp  inclndes, 
Amongst  other  rifjlils,  the  right  to  possess  the  projierty  owned. 
(/)   Willjrahani  v.  Snow,  2  Wms.  Saund.  47  a,  47  b. 


372  PARTIES     TO    ACTIONS. 

him  ?  A.,  for  instance,  orders  goods  of  X.  If  they  arc 
actually  dehvercd  to  A.,  there  is  generally  little  doubt 
that  the  property  has  passed  to  him,  i.  e.,  that  the  goods 
have  become  A.'s  goods,  and  that  A.  can  sue  X.,  or  any 
other  person  who  keeps  the  goods  out  of  his  possession, 
and  this,  although  X.  ma}'  have  a  cross-action  against  A. 
for  the  price  of  the  goods.  Suppose,  however,  that  A. 
orders  goods  which  are  not  delivered  to  him.  It  then 
becomes  a  matter  of  considerable  difficulty  to  determine 
whether  the  propert}'  in  the  goods  has  passed  to  A.  The 
determination  of  this  question,  which  lies  beyond  the  scope 
of  the  present  treatise,  depends  partly  on  matters  of  fact, 
partly  on  rules  of  law.  It  must,  however,  be  determined, 
in  order  to  settle  whether  A.  can  bring  trover  against  X. 
who  keeps  the  goods  from  him.  If  the  property  in  the 
goods  has  passed,  A.  has,  as  being  owner,  the  right  to 
possess  them,  and  can,  therefore,  sue  X.  in  trover. 
[350]  If  the  property  in  the  goods  has  not  passed,  A.  has 
not  that  right  of  possession,  which  is  necessary  to 
support  an  action  of  trover,  {g)  So,  again,  if  the  question 
be  whether  a  donee  {i.  e.,  a  person  to  whom  goods  have  been 
given)  can  bring  trover  against  a  person  who  retains  them, 
it  is  necessary  to  determine  whether  the  gift  was  of  a  kind 
to  pass  the  property  in  the  goods,  since  otherwise  the 
donee  has  no  right  to  possess  them,  and  therefore  no  right 
to  maintain  an  action  for  an  interference  with  the  right  of 
possession.  If  the  gift  has  been  a  merely  verbal  one,  the 
donee  can  not  sue,  for,  "  by  the  law  of  England,  in  order 
to  transfer  property  by  gift,  there  must  be  a  deed  or 
instrument  of  gift,  for  there  must  be  an  actual  delivery  of 
the  thing  to  the  donee."  (r) 

The  question  of  ownership  may  again  arise  when  the 
matter  to  be  decided  is,  not  whether  trover  can  be  brought, 

{g)  As  to  the  question  when  the  property  in  goods  sold  passes,  see  Benjamin, 
Sale,  pp.  213-290. 

(r)  Irons  v.  Smallpiece,  2  B.  &  Aid.  551  ;  Bunn  v.  Markhain,  7  Taunt.  224  ; 
"Wilbraham  v.  Snow,  2  Wms.  Saund.  47  b  ;  Bourne  v.  Fosbrooke  3  L.  J.  164 
C.  P.  ;  18  C.  B.,  N.  S.,  515.  For  further  examples  of  the  relation  between  the 
right  to  own  property  and  to  bring  trover,  see  Addison,  Torts,  3rd  ed.  323 
324 


GENERAL    RULES.  373 

but  which  of  two  persons  ought  to  bring  it.  A  chi  d,  for 
instance,  is  deprived  of  personal  goods,  e.  g.,  a  watch :  is 
he  or  his  parent  the  right  person  to  sue  the  wrong-doer? 
The  answer  is,  that  property  in  the  hands  of  very  young 
children  is  in  the  constructive  possession  of  the  father  and 
master  of  the  house  ;  but  goods,  e.  g.,  watches  or  books, 
given  to  a  schoolboy  or  apprentice,  and  taken  away  from 
home,  are  the  property  of  the  boy  ;  and  if  they  are  con- 
verted by  a  wrong-doer,  the  boy,  not  the  parent,  should 
sue  for  tiie  injury,  {s) 

A.  sends  goods  to  B.  by  a  carrier,  X.,  who  converts 
them  ;  the  question  is,  should  A.  or  B.  sue  X.,  who  can 
undoubtedly  be  sued  by  one  or  the  other.  The  answer  is, 
that  he  must  sue  X.,  who,  having  the  property  in 
the  goods,  has  the  right  to  possess  them.  "If  a  trades-  [351] 
man  "  [the  purchaser]  "  order  goods  to  be  sent  by  a 
carrier,  though  he  does  not  name  any  particular  carrier, 
such  delivery  operates  as  a  delivery  to  the  purchaser, 
and  the  whole  property  is  immediately  vested  in  him; 
and  if  any  accident  should  happen  to  the  goods,  it  will  be 
at  the  risk  of  the  purchaser;  (/)  a  fortiori,  therefore,  if  the  ^ 
purchaser  select  a  particular  carrier,  {ii)  This  is  on  the 
ground  that  a  delivery  to  the  vendee's  agent  is  a  delivery 
to  the  vendee.  But  where  the  contract  is  imperfect,  e.  g., 
invalid  by  the  Statute  of  Frauds,  {x)  or  the  goods  are  sent 
by  a  conveyance  not  authorized  by  the  vendee,  or  not 
authorized  to  be  sent  at  all,  or  the  vendee  retains  an 
option  to  refuse  the  goods,  the  property,  until  acceptance, 
remains  in  the  vendor,  and  the  vendee  can  not  maintain 
trover,  {y)  If  A.  order  a  tradesman  to  send  him  goods 
by  a  hoy  man,  and  the  trades  nan  send  the  goods  by  a 
porter  to  the  house  where  the  hoyman  resides  when  in 
to>vn,  and  tlie  porter,  not  finding  him,  leave  the  goods 
with  the  landlord,  A.  can  not  maintain  trover  against  the 
landlord,    for    the    property    never    vested    in    A.,    but 

(s)  Hunter  V.  Wc-ill)P>ok.  2  C.  \\  578  ;  AiUlisoii,  Toils,  311!  cd..  3^8. 

(I)  Dutton  V.  Solomonson,  3  H.  &  1'.  582. 

(m)   Dawes  v.  Peck.  8  T.  R.  330.     See  Diinlop  v.  lamherl,  6  CI.  &  F.  627, 

(jr)  Coats  V.  Chaplin,  3  Q.  IJ.  483 

\ y)  Swain  v.  Shq^hcrcl.  t  M.  &  Rob.  223  ;  Fn--  nm  v    111.,  li    3  Q.  H.  492. 


374  PARTIES     TO    ACTIONS. 

remained  in  the  tradesman  ;  {z)  but  if  the  person  to  whom 
the  goods  were  delivered  had  been  a  servant  to  the  hoy- 
man,  and  entrusted  by  him  to  receive  the  goods,  A. 
might  have  maintained  trover;  for  by  such  delivery  the 
property  would  have  vested  in  hirn,  and  therefore,  in  such 
case,  the  tradesman  could  not  have  brought  trover  against 
the  hoyman."  {a)  {b) 

In  the  foregoing  instances,  and  others  of  the  same  sort, 
the  power  to  bring  trover  depends,  no  doubt,  in  one 
[352]  sense,  upon  the  right  of  property  or  ownership. 
The  reason  of  this  is,  that  the  right  to  possess 
goods  depends,  in  many  cases,  upon  the  right  to  own 
them  ;  but  trover  can  often  be  supported  by  persons  who 
are  not  the  owners  of  property. 

Bailees. — A  bailment  has  been  defined  "  a  delivery  ot 
goods  for  some  purpose,  upon  a  contract  express  or 
implied,  that,  after  the  purpose  has  been  fulfilled,  they  shall 
be  re-delivered  to  the  bailor,  or  otherwise  dealt  with, 
according  to  his  directions,  or,  as  the  case  may  be,  kept  till 
he  reclaims  them."  {c)  The  person  who  delivers  the 
goods  is  the  bailor;  the  person  who  receives  them  is  the 
bailee.  From  the  definition  of  a  bailment  it  is  clear  that 
bailees  may  be  of  various  descriptions,  and  possess  differ- 
ent rights  over  the  property  placed  in  their  hands.  Thus, 
a  hirer  to  whom  goods  are  let,  a  pawnbroker  to  whom 
they  are  pledged,  a  workman  who  has  a  lien  upon  them, 
or  a  friend  to  whom  they  are  lent,  and  others,  are  all  ot 
them  bailees,  and  have,  in  many  respects,  different  rights. 
The  point  to  be  noticed  is  the  right  which  they  have  in 
common,  i.  e.,  the  right  to  the  possession  of  the  goods 
confided  to  them,  for  an  interference  with  which  they  can 
maintain  trover. 

"  It  is,  moreover,  a  doctrine  universally  applicable  to 
bailment,  that  there  is  a  special  qualified  property  trans- 
ferred from  the  bailor  to  the  bailee,  together  with  the 
possession.     It  is  not  an  absolute  property,  because  of  his 

{2)  Colston  V.  Woolaston,  Bull,  N.  P.,  35. 
,'a)  See  Staples  v.  Alden,  2  Mod.  309. 
{b)  Selwyn,  N.  P.,  13th  ed.,  12S0,  1281. 
{c)  2  Steph.,  Com.,  6th  ed..  80. 


GENERAL    RULES.  375 

contract  for  restitution,  the  bailor  having  still  left  to  him 
the  right  to  a  chose  in  action,  grounded  upon  such  con- 
tract,  {d)     And  on  account  of  this  qualified  property  of 
the   bailee,   he    may,  as   well   as  the  bailor,  maintain  an 
action  against  such  as  injure  or  take  away  the  chattels.  The 
tailor,  the  carrier,  the  innkeeper,  the  agisting  farmer,  the 
pawnbroker,  the  borrower,  the  hirer,  or  any  other  bailee, 
may  respectively  vindicate,  in  their  own  right,  this  their 
possessory  interest,  against  any  stranger  or  third 
person;    for   the   bailee   being   responsible   to   the    [353] 
bailor,  if  the  goods  be  lost  or  damaged  by  negli- 
gence, or  if  he  do  not  deliver  them  up  on  lawful  demand, 
it  is  therefore  reasonable  that  he  should  have  a  right  of 
action  against  all  other  persons  who  may  injure  them  or 
take  them  away,  so  that  he  may  always  be  ready  to  answer 
the  call  of  the  bailor."  (,?) 

"  A  carrier,"  it  is  laid  down  by  another  writer,  "  may 
maintain  trover  against  a  stranger  who  takes  the  goods 
out  of  his  possession  ;  so  may  a  factor,  or  other  consignee, 
or  pawnee,  or  trustee ;  so,  if  a  house  be  blown  down,  and 
a  stranger  take  away  the  timber,  the  lessee  for  life  may 
bring  trover,  for  he  has  a  special  property  to  make  use  ^f 
it  for  the  purpose  of  rebuilding  although  the  genera! 
property  is  in  the  owner.  .  .  .  So  if  a  man  lend  his 
cattle  to  A.  to  plough  his  land,  and  a  stranger  takes  theqi 
away,  A.  may  maintain  trover  or  trespass  against  him. 
The  agister  of  cattle  may  also  maintain  trover  against  a 
stranger  who  takes  them  away.  .  .  .  So,  the  master 
of  a  fly-boat,  who  is  hired  by  a  canal  comjxany  at  weekly 
wages,  may  maintain  trespass  for  cutting  a  rope  fastened 
to  the  vessel,  whereby  it  was  being  towed  along,  although 
the  vessel  and  the  rope  were  the  property  of  the  company 
(/)  So  he  who  has  a  right  to  the  possession  of  goods  in 
respect  of  a  lien,  may  bring  trover  for  the  conversion  of 
the  n."  ig)  {h)     Nor  need  the  bailee  have  actual  pl.).-;J.'a 

(d)  Donald  v.  Suckling.  I-  K.  l.  Q-  i5-  S^^S.  6l8. 
{e)  2  Sti'ph.  Com  ,  6th  ed.,  83. 
(/)   Moore  v.  Kobinson,2  H.  &  Ad.  817. 
•  (.f )  ••CKK  V.  Evan'^.  6  M.  \  W.  36. 
{h)  Wilbrahani  v.  Snow,  2  Wins.  Saund.  .}7  d,  A^  • 


376  PARTIES     TO    ACTIONS. 

possession,  if  he  lias  a  n<;ht  to  the  possession  ;  for  "  a  per- 
son who  has  only  a  special  [)ropcrty  may,  in  some  cases, 
maintain  trover,  although  he  has  never  had  actual  posses- 
sion. Thus  a  factor,  to  whom  goods  had  been  consigned, 
but   which     he     had     never    received,   may    bring    this 

action."  (/)  {k) 
[354]  Merc  possessors. — A  person  who  has  the  actual 

possession  of  goods  has  a  right  to  possess  them 
against  anv  one  who  can  not  show  a  better  title,  or,  what 
is  the  same  thing,  who  can  not  show  that  in  interfering  with 
possession  of  the  goods,  he  is  acting  under  the  authority 
of  some  one  who  has  a  better  title  than  the  possessor.  (/) 
Rights  of  action  of  this  sort  are  given  in  respect  of  the 
immeJiate  and  present  violation  o^  the  possession  ot 
the  plaintiff,  independently  of  his  right  of  property,  and 
are  an  extcnsi(jn  of  the  protection  which  the  law  throws 
round  his  i)erson.  {in)  The  owner  of  furniture  lent  it  to 
A.,  under  a  written  agreement.  A.  placed  it  in  the  house 
of  jNI.,  a  bankrupt,  and  X.,  M.'s  assignee,  seized  it:  A.  was 
held  entitled  to  maintain  trover  against  X.  without  pro- 
ducing the  written  agreement,  («)  i.  e.,  without  showing 
hts  title  to  or  right  of  property  in  the  furniture.  So  A., 
the  plaintiff,  bought  a  vessel  which  was  stranded,  but  she 
was  not  conveyed  to  him  according  to  the  provisions  of 
the  Register  Acts.  Me  took  possession  of  her,  and  for 
some  days  endeavored  to  save  her,  but  afterwards  she 
went  to  pieces,  and  parts  of  the  wreck  drifted  upon  X.,  the 
defendant's  land,  and  were  by  him  cut  up  and  carted  away. 
An  action  of  trover  was  held  maintainable  {p)  by  A.  against 
X.     The  lessees  of  a  mine  brought  trover  tor  the  ore,  and 

(/)  Fowler  v.  Down,  i  B.  &  F.  44. 

(/(')  Wilbrah.-im  v.  Snow,  2  Wms.  Saund.  47  g.  A  bailee  who  has  the  right 
to  immediate  possession  can  maintain  trover  even  against  a  bailor  M'ho  has 
not  such  a  right  (Milgate  v.  Kebble.  3  M.  &  G.  100  :  Richards  v.  Symonds,  8  Q. 
IJ.  90).  X.  lets  a  horse  for  a  month  to  A.,  and  during  that  month  takes  it 
away:  A.  can  sue  X.  (Lancashire  Wagon  Co.  v.  Fitzhugh,  5  H.  &  N.  502  ;  30 
L.  J.  231,  Ex.). 

(/)  Armory  v.  Delamirie,  I  .Str.  504  ;  i  Smith,  L.  C,  6th  ed.,  315  ;  Jeffries 
V.  Great  W\-stern  Rail.  Co.,  5  E.  cS:  B.  802  ;  26  L.  J.  109,  Q.  B. 

(nt)  Rogers  v.  Spence,  13  M.  &  W.  571,  581 

{«)  Burton  v.  Hughes,  2  Bing.  173.  ■> 

(p)  Sutton  V.  Buck.  2  Taunt.  302. 


GENERAL     RULES.  m 

it  was  held  that  on  a  plea  of  not  possessed,  it  was  suf- 
ficient for  them  to  prove  their  occupation  of  the  mine  from 
which   the   ore   was  dug,  without  showing  any  title  in 
their  lessors.  (/)     A  person,  again,  who  has  absolutely  no 
title  at   all  as  against  the  owner  {e.  g.,  the  finder 
of  goods  which  are  lost),  may  have  a  right  of  posses-    [355] 
sion    against   every    one   else.     There    may   be    a 
special  property  {q)  arising  simply  out  of  a  not  unlawful 
possession,  which  ceases  when  the  true  owner  appears,  (r) 
A.,  the  plaintiff,  a  chimney-sweeper's  boy,  found  a  jewel, 
and  carried  it  to  the  shop  of  X.,  the  defendant,  a  gold- 
smith, to   know  what  it  was,  and  delivered  it  into  the 
hands  of  his  apprentice,  who,  under  pretense  of  weighing 
it,  took  out  the  stones  and  called  to  the  master  to  let  him 
know  that  it  came  to  three  halfpence.     The  master  offered 
the  money  to  the  boy,  who  refused  to  take  it,  and  insisted 
upon  having  the  thing  back  again,  whereupon  the  appren- 
tice delivered  him   back  the  socket  without  the  stones. 
It  was  held  that  A.   could  maintain  an   action  of  trover 
against  the  goldsmith,  and  it  was  laid  down    "  that  the 
finder  of  a  jewel,   though   he  does  not   by  such  finding 
acquire  an  absolute  property  or  ownership,  yet  he  has 
such  a  property  as  will  enable  him  to  keep  it  against  all 
but  the  rightful  owner,  and   consequently  may   maintain 
trover."  (5)     A.,  on  entering  a  shop,  found  on  the  floor  a 
bundle  of  notes,  which   had   been  accidentally  dropped 
there  by  M.,  a  stranger.     A.  handed  it  at  once  to  X.,  the 
owner  of  the  shop,  with  a  view  to  its  being  restored  to  M. 
if  he  should  return.     X.  advertised    the  finding   in    the 
newspapers,  and  M.,  the  true  owner,  could  not  be  found. 
A.,  not  having  intended  to  waive  his  title,  offered  to  repay 
the  expenses  of  the  advertisements,  and  to  indemnify  X. 
against  any  claim,  and  demanded  the  notes  back  ;  and  on 
X.'s  refusal  to  give  them  back,  sued  X.     A.,  tiic  finder, 
was  held  entitled  to  recover.  (/) 

(/)  Taylor  v.  Parry,  I  M.  &  CJ.  604.     Sec  2  Wms,  Saund.  47  g,  note  (w) 

(q)  /.  ^.,  a  sort  of  temporary  or  provisional  owncrsliip. 

(r)  Wilbrah^m  v.  Snow,  2  Wms.  Saund.  47  j. 

(j)  Armory  v.  Delamirie,  I  Str.  504  ;   l  Smith,  L.  C.  6th  cd.,  315. 

(/)  Bridges   v.  Ilawkesworlh.  21   !..  J.  75.  Q-  ''•        l''^-"  '>i>dcr  must,  in   order 


57S  /\IKT//-S     TO    ACTIONS. 

[356J  If  X.,  a  wrong-doer,  converts  goods  in  tiie 
possession  of  A,,  he  can  not  set  up  as  a  defense 
against  A.'s  right  the  mere  title  of  a  third  party,  («)  or, 
as  it  is  called,  the  jus  tertii.  If,  that  is  to  say,  A.  is  in 
possession  of  goods  which  X.  takes,  he  can  not  defend 
himself  in  an  action  by  A.,  by  showing  that  a  third  party, 
M.,  was  really  entitled  to  the  possession  of  the  goods, 
unless  he  can  show  that  he  took  the  goods  by  the  author- 
ity of  M. ;  i.  e.,  that  he  was  not  a  wrong-doer.  Where  X. 
took  the  wagons  of  A.  and  B.,  and  attempted,  in  answer 
to  an  action  by  them,  to  set  up  the  title  of  a  third  party,. 
M.,  the  law  was  thus  stated  by  Lord  Campbell,  C.  J.: — 
"  The  jus  tertii  could  not  be  set  up.  .  .  .  The  law 
is,  that  if  a  person  is  peaceably  and  quietly  in  possession 
of  a  chattel  as  his  own  property,  a  person  who  takes  il 
from  him  having  no  good  title  is  a  wrong-doer,  and  such 
person  can  not  defend  himself  by  showing  that  the  chattel 
is  not  the  property  of  the  plaintiff,  but  the  property  of  a 

third  person There  is  no  difference  whatever 

for  this  purpose  between  an  action  of  trespass  and  an 
action  of  trover.  In  both  cases  the  plaintiff  rests  on  his 
possession  of  the  property,  and  the  question  is,  whether  a 
person  who  has  no  title  whatever  of  his  own  shall  be 
allowed  to  show  that  the  plaintiff  has  not  the  right  of 
property  [i.  e.,  right  to  possession].  The  right  of  prop- 
erty is  presumed  from  the  possession;  and  is  that  pre- 
sumption to  be  rebutted  by  evidence  on  the  part  of  the 
defendant,  a  mere  stranger  and  wrong-doer,  showing  that 
the  plaintiff  was  not  the  real  owner  of  the  property  ?  1 
am  of  opinion  that  that  can  not  be  done."  [x) 

to  support  an  action  of  trover,  be  a  real  finder,  and  not  a  person  who  has  taken 
possession  of  goods  not  in  reality  lost.  A  porter,  for  instance,  who  discovers 
luggage  in  a  railway  carriage,  has  been  held  not  to  be  a  finder  (R.  v.  Pierce,  6 
Cox,  C.  C.  107.  Compare  Merry  v.  Green,  7  M.  &  W.  623  ;  R.  v.  Thomas,  33 
L.  J.  22,  M.  C).  Perhaps,  too,  he  ought  to  be  an  innocent  finder,  and  not  one 
who  becomes  possessed  of  goods  feloniously  or  fraudulently.  But  it  rather 
seems  that  a  possessor,  even  of  this  description,  might  sue  a  wrong-doer  who 
took  the  goods  from  his  possession  (see  Buckley  v.  Grose,  32  L.  J.  131,  Q.  B., 
judgment  of  Crompton,  J.). 

(m)  See  ante, 

{x)  Jeffries  v.  Great  Western  Rail.  Co.,  25  L.  J.  109,  no,  Q.  B.,  judg- 
ment of  Campbell.  C.  J. 


GENERAL     RULES.  i7(y 

Where,  indeed,  the  plaintiff  rehes,  not  upon  his  [357] 
actual  possession  at  the  time  of  the  conversion,  but 
upon  his  right  to  possession,  the  defendant  may  set  up  a 
\us  tertii,  but  this  is  not  really  setting  up  against  the 
plaintiff's  right  to  possession  the  superior  right  of  a  third 
person,  but  amounts  to  showing  that  the  plaintiff  had  no 
right  to  possession  at  all.  A.,  for  example,  bought  goods 
of  M.,  and  allowed  M.  to  remain  in  possession  of  them  for 
some  years.  M.  then  became  bankrupt,  and  M.'s  assignees 
made  no  claim,  and  M.  retained  possession  of  the  goods 
for  some  years  longer,  when  X.,  the  sheriff,  seized  them 
under  a  fi.  fa.  against  M.,  and  sold  them.  After  the  sale, 
the  assignees  gave  notice  of  their  claim,  and  the  sheriff, 
X.,  paid  over  the  proceeds  of  the  sale  to  them.  It  was 
held  in  an  action  by  A.  against  X.,  that  X.  might  set  up 
the  title  of  the  assignees,  {y)  A.  had  obtained  possession 
of  spme  tallow,  part  of  the  salvage  from  a  fire,  and  his 
possessory  right  had  been  lawfully  divested  ;  he  was  held 
not  entitled  to  maintain  trover  against  X.,  who  had  subse- 
quently purchased  it.  {s)  In  the  last  case  there  was,  indeed, 
no  jus  tertii  set  up,  yet  both  it,  and  in  cases  in  which  it  is 
allowable  to  set  up  a  third  person's  right  against  a  claim 
arising  from  possession,  rest,  it  is  submitted,  on  the  same 
principle.  If  the  plaintiff  alleges  that  he  had  a  right  to 
possession,  it  is  allowable,  either  by  setting  up  the  jus 
tertii,  or  by  any  other  means,  to  show  that  at  the  time  of 
the  conversion  he  had  no  right  to  possession  whatever. 
If,  on  the  other  hand,  he  shows  that  he  had  actual  posses- 
sion at  the  time  of  the  act  complained  of,  then  his  right  to 
possession  is  indubitable,  and  it  is  no  answer  to  show  the 
superior  right  or  title  of  another  party,  (a) 

Custody  of  servants. — Goods  in  the  custody  of  a   [358] 
mere   servant   arc    not   in    the   posscssicju    of    the 
servant,  but  in  the  possession  of  the  master.      A  servant, 

{y)  Leake  V.  I.oveday,  4  M.  &  G.  972 

(2)  Buckley  V.  Grose,  3  U.  &  S.  566 ;  32  I>.  J.  129,  Q.  B. 

(a)  Compare  Jeffries  v.  Great  Western  Rail.  Co.,  25  I..  J.  IIO,  Q.  B.,  judg- 
ment of  WioiiTMAN,  J.  Sec  both  as  to  the  rules  with  reference  to  .sctiiiij;  up  the 
jus  tertii  and  as  to  the  connection  belween  the  rij^iit  of  ownership  and  the  right 
to  bring  trover    Bourn--  v    I'o^l.ro.L:-,  34  L.  J.  I'i4.  ''   P.  ;    18  C.  B  ,  N.  S.,  51  j 


38o  PARTIES     TO    ACTIONS. 

that  is  to  say,  is  not  a  bailee,  {b)  Hence,  a  mere  servant 
who  has  the  custody  of  goods  can  not  (it  would  seem) 
bring  trover,  for  he  has  not  any  possession  such  as  to  give 
him  the  right  of  possession.  "  You  can  not  make  my  ser- 
vant whose  possession  is  my  possession,  my  bailee.  He 
is  not  liable  as  a  bailee.  When  goods  are  delivered  to 
another  as  a  bailee,  the  special  property  passes  to  him, 
but  here  it  does  not."  {c) 

Where  either  the  bailee  or  bailor  may  bring  trover. — 
Suppose  that  while  A.'s  watch  is  in  the  hands  of  B.,  a 
bailee,  it  is  converted  by  X.,  which  of  them  can  sue  X.? 
The  answer  depends  upon  the  nature  of  the  bailment.  If 
it  is  what  is  called  a  simple  bailment,  as  where  goods  are 
lent  to  a  friend,  entrusted  to  a  carrier,  &c.,  that  is  bailment 
which  does  not  confer  on  the  bailee  a  right  to  exclude  the 
bailor  from  possession ;  either  A.  or  B.  may  maintain  trover 
against  X.  id)  The  bailee  may  maintain  this  action, 
because  the  action  depends  on  the  right  to  the  possession 
which  he  has  by  virtue  of  the  bailment  made  to  him,  {e) 
and  the  bailor  may  also  maintain  it,  because,  as  owner 
of  the  goods,  he  has  the  right  of  possession,  and  the 
I J59]  bailment  is  not  of  such  a  nature  as  to  vest  this  right 
in  the  bailee  solely.  (/) 

The    recovery    of    damages,    either    by    the    bailor 

(U)  See  R.  v.  Hey,  2  C.  &  K.  983  ;  R.  v.  Gibbs,  i  Dears.  C.  C.  445,  and 
•ther  cases  on  larceny  ;  Smith,  Master  and  Servant,  2nd  ed.,  284-313  ;  and  see 
Hopkinson  v.  Gibson,  2  Smith,  202,  204,  205. 

(c)  Hopkinson  v.  Gibson,  2  Smith,  202,  204,  205,  per  Ellenborough,  C.  J. 
It  is  important  to  note  exactly  the  difference  between  a  mere  servant  and  a 
bailee.  If  A.  gives  goods  to  B.,  e.  g.,  a  carrier,  A.  retains  the  right  to  possess 
the  goods,  but  he  passes  the  possession  itself  to  B.  If,  on  the  other  hand  B.  is 
not  a  carrier,  but  a  mere  servant,  A.,  though  he  may  give  the  custody  or  deten- 
tion of  the  goods  to  B.,  does  not  pass  to  him  the  possession  of  them.  Hence 
B..  the  bailee,  has,  as  against  third  parties,  a  right  to  possession,  and  can  bring 
trover  ;  but  B.,  the  servant,  having  no  possession,  has  no  right  to  possession, 
and  can  not  bring  trover.  It  is  conceived  that  if  B.  should  be  in  any  way 
acting,  not  only  as  a  servant,  but  also  as  a  bailee,  he  might  bring  an  action  for 
the  conversion  of  the  goods. 

(d)  NichoUs  V.  Bastard,  2  C.  M.  &  R.  659  ;  Manders  v.  Williams,  4  Ex. 
339  ;  18  L.  J.  437,  Ex. 

(e)  Sutton  V.  Buck,  2  Taunt.  302. 

(/)  Williams,  Personal  Property,  7th  ed.,  27,  28  ;  Wilbraham  v.  Snow 
Wms.  Saund.  47  c-47  e. 


GENERAL    RULES.  381 

oi   ~t>y  tno  oailee,  deprives  the  other  of  his  right  of  ac- 
tio.*, (j) 

By  the  recovery,  moreover,  of  a  judgment  in  an  action 
for  the  conversion  of  goods,  the  plaintiff's  right  of  prop- 
ert}-  is  barred,  and  the  propert}-  vests  in  the  defendant 
from  the  date  of  the  conversion,  {h) 

The  bailment  ma}',  on  the  other  hand,  not  be  a  simple 
bailment.  It  ma}'  be  one  which  gives  the  bailee  a  right 
to  possess  the  goods  against  all  the  world,  including  the 
owner.  In  this  case  trover  must,  during  the  continuance 
of  the  bailment,  be  brovjght  by  the  bailee,  and  not  by  the 
bailor,  who  has  parted  with  the  right  to  immediate  pos- 
session. 

No  one  can  sue  who  hu-s  not  the  right  to  immediate  posses- 
sion, (z) — The  owner  of  goods  can  not  bring  trover  for 
an  act  of  conversion  committed  when  he  has  not  the 
right  to  immediate  possession.  A.  let  furniture  to  B.,  his 
tenant.  .  It  was,  during  the  continuance  of  the  lease, 
wrongfully  taken  in  execution  by  the  sheriff,  X.,  and  sold. 
It  was  held  that  A.,  the  landlord,  could  not  bring  trover 
against  X.,  {k)  it  having  been  alread}'  settled  that  a  land- 
lord could  not,  under  similar  circumstances,  maintam 
trespass.  (/) 

"  Trover  will  not  lie  in  any  case,  unless  the  property 
was  in  the  actual  or  implied  rightful  possession  of  the 
plaintiff.  In  this  case  the  plaintiff  had  neither  the  one 
nor  the  other  pending  the  demise,  and  when  that  is 
determined,  perhaps  he  may  have  his  goods  restored  to 
him  again  in  the  same  state  in  which  they  now  are, 
when  it  will  appear  that  he  has  not  sustained  [360] 
that  damage  which  he  now  seeks  to  recover  in  the 
action."  {in)  "  Here,"  adds  Lawrence,  J.,  "  if  the  taking 
of  the  goods  had  determined  the  interest  of  the  tenant  in 

(^)  Bac.  Abr.,  Trover,  C. ;  Nicholls  v.  Bastard,  2  C.  M.  &  R.  659. 
(A)  Cooper  v.  .Shepherd.  3  C.  H.  266;  15  L.    I.    237,  C.  P.;  Buckland  v 
Johnson,  15  C.  B.  145  ;  23  L.  J.  204,  C    P. 
(«' )  See  Subordinate  Rule  3,  anlf. 
(k)  Gordon  v.  Harper,  7  T.  R.  9. 
(/)  Ward  V    Macuulay,  4  T.  R.4S9. 
(w)  Gordon  v.   FIar|)cr,  7  I".  R.  12,  13,  judgment  of  AsilURST,  J 


382  PARTIES     TO    ACTIONS. 

them,  and  rc-vcstcd  it  in  the  landlord  [/.  e.,  had  restored  to 
the  landlord  the  right  to  possession],  I  admit  that  the 
latter  might  maintain  trover  for  them  ;(«)....  but 
it  is  clearly  otherwise,  for  here  the  tenant's  property  and 
interest  did  not  determine  by  the  sheriff's  trespass,  and 
the  tenant  might  maintain  trespass  against  the  wrong-doer. 
lie  is  bound  to  restore  the  goods  to  the  landlord  at  the 
end  of  his  term,  and  could  not  justify  his  not  doing  so 
because  a  stranger  had  committed  a  trespass  upon  him  in 
taking  them  away."  {o)  Hence,  if  A.  pawns  goods,  or 
mortgages  them  to  B.,  or  gives  B.  a  lien  upon  them,  he 
can  not  bring  trover  during  the  continuance  of  the  bail- 
ment. (/)  "  Gordon  v.  Harper,  which  must  now  be 
considered  as  settled  law,  shows  that  if  a  person  has  an 
interest  in  goods  for  a  certain  time,  by  agreement  with 
the  owner,  the  latter,  during  the  time  he  is  not  in  posses- 
sion, can  not  maintain  trover  against  a  wrong-doer  who 
takes  the  goods.  That  case  might,  with  propriety,  have 
been  decided  differently  in  the  first  instance  ;  but  it  has 
been  followed  by  others,  and  the  court  of  common  pleas 
somewhat  extended  the  rule  in  Bradley  v.  Copl.ey. 
There  it  was  held,  that  where  a  person  in  possession  of 
goods  had  an  uncertain  interest  determinable  by  the 
owner,  until  that  event  happened  [i.  e.,  until  the  interest 
was  determined],  the  owner  could  not  maintain  trover." 
{g)  On  similar  grounds,  a  buyer  in  default  can  not  main- 
tain trover  against  a  seller  for  a  re-sale  of  the  goods  sold 
to  him,  but  left  in  the  possession  of  the  vendor,  since  the 

purchaser  is  deprived,  by  his  default  in   payment, 
[361]    of  the    right   to  immediate  possession.     He  may, 

however,    sue   the   vendor   for   a   breach   of    con- 
tract, (r) 

Right  to   immediate  possession   acquired. — Though   the 

(n)  See  Berry  v.  Heard.  2  Bro.  Car.  242. 

[p)  Gordon  v.  Harper,  7  T.  R.  13,  14,  judgment  of  Lawrence,  J. 

{p)  Milgate   V.    Kebble,  3   M.   &  G.  100;     Richards  v.  Symons,  8  Q.  B.  90 
Bradley  v.  Copley,  I  C.  H.  685  ;   14  L.  J.  222,  C.  V. 

{q)  Mandc-rs  v.  Williams,  4  Ex.  343.  judgment  of  Pakke,  B. 

(r)  Benjamin,  Sale,  594  ;  Mil;^ate  v.  Kebblf,  3  M.  &  G.  100.     Compare  Mar- 
tindale  v   Smith,  i  Q.  B.  389  ;  Stephens  v.  Wilkinson,  2  B.  &  Ad.  320. 


GENERA  L     RULES.  383 

owner  of  goods,  who  has  not  acquired  the  right  to  imme- 
diate possession,  can  not  bring  trover,  he  may  do  so  the 
moment  that  this  right  is  obtained  by  him.  Thus,  A, 
purchases  goods  of  X.,  but  they  are  left  in  X.'s  hands 
until  the  price  is  paid.  If  the  goods  are  re-sold  by  X., 
whilst  A.  is  in  default,  A.  can  not  maintain  an  action 
against  X.,  being  deprived. by  his  default  of  that  right  of 
possession  without  which  trover  will  not  lie.  {s)  Suppose, 
however,  that,  before  the  sale  by  X.,  A.  has  tendered  the 
price,  or  that  the  goods  have  been  bought  on  credit,  (/) 
and  before  the  credit  has  expired,  X.  sells.  A.,  not  being 
in  default,  may  bring  trover  against  X.,  or  against  the 
purchaser,  {ti)  Hence,  where  A.  bought  sheep  on  credit, 
and  left  them  in  the  custody  of  X.,  the  vendor,  who, 
without  any  default  on  the  part  of  A.,  re-sold  the  sheep,  it 
was  held  that,  though  the  price  had  not  been  paid  or 
tendered  by  A.,  the  re-sale  of  the  sheep  was  a  conversion 
for  which  A.  could  maintain  trover  against  X.  {x) 

Right  to  iniincdiate  possession  restored  or  re-vested. — A 
bailor  who  hcis  parted  with  the  right  to  possession  can 
maintain  trover  when  the  right  to  possession  is  restored 
to  or  re-vested  in  him.  It  may  be  restored  by  the  natural 
termination  of  the  bailment.  A.,  for  example,  lets  goods 
to  B.  for  a  month.  At  the  end  of  the  month,  A.'s  right  to 
the  immediate  possession  of  the  goods,  and  consequently 
his  right  to  bring  trover  against  any  one  who  interferes 
with  it,  is  restored. 

But  the  bailment  may  be  determined  before  the  [362J 
time  at  which  it  would  naturally  end,  and  the 
right  to  immediate  possession  be  thus  re-vested  in  the 
bailor  by  the  act  of  the  bailee.  Thus,  if  A.  leaves  his 
goods  in  the  hands  of  X.,  who  has  a  lien  upon  them,  and 
X.  abuses  it  by  pledging  or  selling  the  goods,  A.'s  rigiit 
to  the  possession  (as  a  general  rule)  revives,  and   he  may 

(:)  Mil,;ale  v.  Kel)blc.  3  M.  .&  G.  100;  Benjamin,  Sale.  594. 

(/)  Martindale  v.  Smith.  I  Q.  H.  389;  Chincry  v.  Viall,  5  H.  &  N.  2S8  ;  29 
L.  J.  180,  Ex. 

(«)   I'.i-njamin,  S.ilc,  594.  595. 

(x)  Chinery  v.  Viall.  5  H.  &  N.  28S  ;  28  L.  J.  I  So,  Ex.  Comiare  Martin 
laic  V.  .Smith.  I  Q.  Ij.  389  ;   10  L.  J.  155.  Q.  15. 


384  PARTIES     TO    ACTIONS. 

therefore  maintain  trover,  {y)  For  a  right  of  lien  being 
a  mere  personal  right  which  can  not  be  parted  with,  it 
follows  that  a  bailee  who  has  a  lien  can  not  sell  his  right 
to  another  without  losing  his  right  of  lien,  {s)  unless  the 
property  has  been  plcclged  to  secure  the  repayment  of 
money  advanced  with  an  express  or  implied  power  of 
sale,  {a)  for  there  is  a  clear  distinction  in  this  respect 
between  a  lien  which  is  a  mere  personal  right  of  deten- 
tion and  a  pledge  deposited  to  secure  the  repayment  of 
monc}-.  {b) 

The  general  principle  is  perfectly  clear;  viz.,  that 
when  a  person  who  has  a  limited  interest  in  chattels  [c.  g., 
as  hirer,  lessee,  or  pledgee  of  them)  does  an}^  act  wholly 
inconsistent  with  the  contract  under  which  he  has  tlit 
limited  interest  {i.  e.,  the  bailment),  he  must  be  taken  to 
have  determined  his  special  interest  in  the  things,  so  that 
the  lessor,  pledgor,  or  other  bailor,  may  maintain  an 
action  of  trover  as  if  the  interest  of  the  bailee  had  never 
been  created,  [c] 

"  There  is  a  class  ot  cases  m  which  a  person  having  a 
limited  interest  in  chattels,  either  as  hirer  or  lessee  of 
them,  dealing  tortiously  with  them,  has  been  held  to  deter- 
mine his  special  interest  in  the  things,  so  that  the  owner 
may  maintain  trover  as  if  that  interest  had  never  been 
created.  But  I  think  in  all  these  cases  the  act  done  by 
the  party  having  the  limited  interest  was  wholly 
[363]  inconsistent  with  the  contract  under  which  he  had 
the  limited  interest ;  so  that  it  must  be  taken,  from 
his  doing  it,  that  he  had  renounced  the  contract  which,  as 
was  said  in  Fenn  v.  Bittleston,  {d)  operates  as  a  disclaimer 
of  a  tenancy  at  common  law  ;  or,  as  it  was  put  in  John- 
son V.  Stear,  {e)  he  may  be  said  to  have  violated  an  implied 

{}')  Scott  V.  Newington,  i  Moo.  &  R.  252. 

{z)  Clark  V,  Gilbert,  2  B.  N.  C.  257. 

(a)  Johnson  v.  Stear,  33  L.  J.  130,  C.  P. ;  15  C.  B.,  N.  S.,  330. 

{b)  Donald  v.  Suckling,  L.  R.  i,  Q.  B.  585.  Compare  Halliday  v.  Holgate, 
L.  R.  3,  Ex.  299  ;  Addison,  Toits,  3rd  ed.,  430. 

ic)  Donald  v.  Suckling,  L.  R.  i,  Q.  B.  585.  614,  judgment  of  BLACK- 
BURN, J. 

{d)  7  Ex.  152  ;  21  L.  J.  41,  Ex. 

\e)  15  C.  B.,  N.  S.,  330,  341 ;  33  L.  J.  130.  134,  C.  P 


GENERAL    RULES.  385 

condition  of  the  bailment.  Such  is  the  case  where  a  hirer 
of  goods,  who  is  not  to  have  more  than  the  use  of  them, 
destroys  them  or  sells  them  ;  that  being  so  wholl}-  at 
variance  with  the  purpose  for  which  he  holds  them  that 
it  may  well  be  said  that  he  has  renounced  the  contract  by 
which  he  held  them,  and  so  waived  and  abandoned  the 
limited  right  which  he  had  under  that  contract.  It  may 
be  a  question  whether  it  would  not  have  been  better  if  it 
had  been  originally  determined  that,  even  in  such  cases, 
the  owner  should  bring  a  special  action  on  the  case,  and 
recover  the  damage  which  he  actually  sustained,  which 
may  in  such  cases  be  ver}'^  trifling  though  it  may  be  large, 
instead  of  holding  that  he  might  bring  trover  and  recover 
the  whole  value  of  the  chattel  without  any  allowance  for 
the  special  property.  But  I  am  not  prepared  to  dissent 
from  these  cases,  where  the  act  complained  of  is  one 
wholly  repugnant  to  the  holding,  as  I  think  it  will  be 
found  to  have  been  in  every  one  of  the  cases  in  which  this 
doctrine  has  been  acted  upon."  (/) 

The  difficulty  lies  in  determining  whether  a  given  act 
IS  or  is  not  equivalent  to  a  renunciation  of  the  particular 
contract  of  bailment.  Some  acts,  no  doubt,  such  as  the 
total  destruction  of  the  goods  bailed,  would  at  once  ter- 
minate any  kind  of  bailment ;  but  whether  the  hirer  of  a 
chattel,  e.  g.,  a  horse,  has  the  right  to  let  it  to  a  third  per- 
son, is  doubtful,  and  in  each  case  the  question,  what  acts 
are  inconsistent  with  a  particular  bailment,  must  depend 
on  the  nature  of  the  bailment  and  the  exact 
terms,  either  express  or  implied,  of  the  contract  [364] 
under  which  the  bailor  delivered  his  goods  to  the 
bailee,  {g)  A  person,  for  example,  who  has  a  mere  lien, 
can  not  sell  or  pledge  the  goods  in  his  hands  without 
putting  an  end  to  the  lien.  The  rights  of  a  pledgee  are 
more  doubtful,  (h) 

'*  I    think   it    unnecessary,"    says    CocKBURN,    C.   J., 

(/)  Donald  V.   Suckling,  L.    K.    i,   Q.   B.   614,  615,  judgment  of  Blacx- 
BURN.  J. 

(g)  Lancashire  Wafjon  Co.  v.  Fitzhugh   6  II.  &  N.  502  ;  30   L.  J.  231,  Ex.. 
esp.  233,  for  remarks  of  Pollock,  C.  B. 

(A)  LegK  V.  Evans,  6  M.  &  W.  36 
2«; 


386  PARTIES     TO    ACTIONS. 

"  to  the  decision  in  the  present  case,  to  deter, 
mine  whether  a  party  with  whom  an  article  has  been 
plcdij^ed,  as  security  ibr  the  payment  of  money,  has  a 
right  to  transfer  his  interest  in  the  thing  pledged  (subject 
to  the  right  of  redemptljii  -n  the  pawnor)  to  a  third 
party.  I  should  certainly  hesirale  to  lay  down  the  affirma- 
tive of  that  proposition.  Such  a  right  in  the  pawnee 
seems  quite  inconsistent  with  the  undoubted  right  of  the 
pledgor  to  have  the  thing  pledged  returned  to  him  imme- 
diately on  the  tender  of  the  amount  for  which  the  pledge 
was  given.  In  some  instances  it  may  well  be  inferred 
from  the  nature  of  the  thing  pledged, — as  in  the  case  of  a 
valuable  work  of  art, — that  the  pawnor,  though  perfectly 
willing  that  the  article  should  be  entrusted  to  the  custody 
of  the  pawnee,  would  not  have  parted  with  it  on  the  terras 
that  it  should  be  passed  on  to  others  and  committed  to 
the  custody  of  strangers.  It  is  not,  however,  necessary  to 
decide  this  question  in  the  present  case.  The  question 
here  is,  whether  the  transfer  of  the  pledge  is  not  only  a 
breach  of  the  contract  on  the  part  of  the  pawnee,  but 
operates  to  put  an  end  to  the  contract  altogether,  so  as 
to  entitle  the  pawnor  to  have  back  the  thing  pledged 
without  payment  of  the  debt.  I  am  of  opinion  that  the 
transfer  of  the  pledge  does  not  put  an  end  to  the  con- 
tract, but  amounts  only  to  a  breach  of  contract,  upon 
which  the  owner  may  bring  an  action  for  nominal  damages 
if  he  has  sustained  no  substantial  damage,  for  substantial 
damages  if  the  thing  pledged  is  damaged  in  the  hands  of 
the  third  party,  or  the  owner  is  prejudiced  by  delay 
[365J  in  not  having  the  thing  delivered  to  him  on  tender- 
ing the  amount  for  which  it  was  pledged."  {i) 
The  inquiry,  again,  whether  a  hirer  or  lessee  puts  an 
end  to  the  bailment  by  a  sale  of  the  goods  leased  to  him, 
and  thus  restores  to  the  bailor  the  immediate  right  to 
possession,  presents  some  difficulty.  It  is  clear  that  the 
purchaser  can  take  no  greater  interest  than  the  bailee 
possesses.     It  is  also  (it  is  submitted)  established  that  an 

(t)  Donald  v.  Suckling,  L.  R.    I,  Q   B.  61S,  judgment  of  Cockbwrn,  C.  J 
Compare  Halliday  v.  Holgate,  L,  R.  3.  Ex.  2()q. 


GENERAL     RULES.  387 

absolute  sale  by  the  hirer,  that  is  to  sa)',  a  sale  of  more 
than  his  own  interest  at  once,  determines  the  bailment.  (>6) 
Thus  B.  hired  goods  from  week  to  week  from  A.,  and  after- 
wards sold  and  delivered  them  to  X.,  a  bona  fide  purcha- 
ser, (/)  It  was  held  that  A.  could  sue  X.  in  trover,  on  the 
ground  that  "if  goods  be  let  on  hire,  although  the  person 
who  hires  them  has  the  possession  of  them  for  the  special 
purpose  for  which  they  are  lent,  yet  if  he  send  them  to 
an  auctioneer  to  be  sold,  and  that  auctioneer  refuse  to 
deliver  them  to  the  owner,  ...  he  is  guilt}'  of  conver- 
sion." {ill)  So  where  B.  mortgaged  his  household  furni- 
ture to  A.,  but  remained  in  possession  of  it,  and  upon  his 
becoming  bankrupt,  his  assignees  sold  the  whole  of  the 
furniture  absolutely,  it  was  held  that  the  sale  by  the 
assignees  of  B.  destroyed  the  bailment,  and  that  a  sale  by 
the  assignees  being  equivalent  to  a  sale  by  B.  himself,  A.'s 
representatives  could  maintain  trover  against  the  assign- 
ees, (n)  "  If  these  goods  had  been  simply  taken  by  a 
third  person  out  of  [B.'s]  custod}'  during  the  term  stipu- 
lated for,  no  action  of  trover  could  have  been  maintained, 
because  the  plaintiffs  would  have  had  no  present  right  to 
the  possession.  The  cases  of  Gordon  v.  Harper 
and  Bradle}'  v.  Copley,  would  certainly  have  [366] 
appHed ;  but  the  learned  counsel  for  the  plaintiffs 
contended  that  if  the  bailment  was  for  that  term  it  was 
put  an  end  to  by  the  act  of  the  assignees  (whose  act  for 
this  purpose  is  the  same  as  that  of  B.  himself)  in  selling 
the  chattels  absolutely  before  the  22nd  of  March,  1850,  and 
so  preventing  themselves  from  returning  them  at  the  end 
of  the  term,  and  that  such  sale  was  itself  a  conversion; 
and  we  are  of  that  opinion."  {6) 

But  a  mere  wrongful  taking  of  the  goods  by  a  third 
person  out  of  the  hands  of  the  bailee  is  an  injury  to  iiim, 
but  docs  not  terminate  the  bailment,  or  rc-vest  the  right 

{k)  See  Chapter  XXV. 

(/)  Cooper  V.  Willomatt.  i  C.  13.  ^171  ;   14  1..  J.  219,  C.  P. 
(w)  Il)ici.,  I    C.  li.   682,  judgment   of  TiNnAl.,   C.   J.,  citing   hocsclimfn  v. 
Machin,  2  Stark.,  N.  P.  C,  311.     See  Bryant  v.  Wardell,  2  Lxch.  479. 
(w)  Fcnn  v.  Uittk-ston,  7  Kxch.  152  ;  21  L.  J.  41,  Ex. 
{fi)  Fcnn  V.  Hitilesfon,  7  Kxch.  15S,  150,  per  Curiam. 


388  PARTIES     TO    ACTIONS. 

of  possession  in  the  bailor;  (/)  and,  further,  it  seems  that 
the  bailee,  though  he  terminates  the  bailment  by  an  abso- 
lute sale  of  the  goods,  yet  can  sell  his  own  interests  in 
them  without  pn)ducing  that  effect.  If,  for  example, 
goods  are  let  by  A.  to  X.  for  a  year,  X.  can  probably  sell 
the  use  of  the  goods  for  a  year  to  Y.  without  putting  an 
end  to  the  Isase.  {q) 

The  wrongful  act,  not  of  the  bailee,  but  of  a  third  party, 
mav  sometimes  i-estore  to  the  bailor  his  right  to  possess 
his  chattels.  Suppose  that  B.  has  possession  of,  and  a 
lien  upon,  the  goods  of  A.,  X.,  by  wrongfully  taking  them 
from  the  hands  of  B.,  puts  an  end  to  the  bailment,  and 
restores  to  A.  the  right  of  possession,  and  so,  though  if 
goods  are  let  to  B.,  the  mere  taking  of  them  by  X.  does 
not  determine  the  lease,  the  total  destruction  of  them  by 
him  would  (it  is  submitted)  have  that  effect,  and  there- 
fore restore  to  A.  the  right  to  bring  trover. 

[367]  SUBORDINATE   RULE  IV. 

Any  person  entitled  to  the  reversionary  interest  in  goods  (i.  e., 
the  reversioner^,  may  bring  an  action  for  any  damage  to 
such  i7iteresty  or,  in  other  words,  to  his  right  of  ultimate 
possession. 

If  A.  lets  furniture  to  B.,  and  X.  simply  takes  it,  or 
keeps  it  out  of  B.'s  hands,  this  being  no  injury  to  A.,  who 
has  not  the  right  to  immediate  possession,  he  can  not 
bring  trover  or  trespass  against  X.  He  has,  however, 
still  an  interest  in  the  furniture,  i.  e.,  the  right  to  have  it 
safe  and  uninjured  at  the  end  of  the  letting.  If,  therefore, 
X.  permanently  damages  the  goods,  as  for  example,  breaks 
them,  he  injures  A.,  and  A.  may  sue  X.  for  the  damage  to 
his  reversionary  interest.  A.,  the  owner  of  a  barge,  let  it 
to  B.     Whilst  in  B.'s  possession,  and  during  the  contimi- 

(/)  Gordon  v.  Harper,  7  T.  R.  9  ;  Tiradley  v.  Copley,  I  C.  B.  685  ;  14  L 
J.  222,  C.  P. ;  Lancashire  Wagon  Co.  v.  Fitzhiigh,  6  H.  &  N.  502  ;  30  L.  J.  231 
Ex. ;  Tancred  v.  Allgood,  28  L.  J,  362,  Ex.  ;  4  H.  &  N.  438. 

(q)  Dean  v.  Whitaker,  i  C.  &  P.  347.  Compare  Lancashire  Wagon  Co.  v 
Fitzhugh,  6  H.  &  N.  502  ,  30  L.  J.  231,  Ex. 


GENERAL     RULES.  389 

ance  of  the  lease,  the  barge  was  damaged  through  the 
negligence  of  X.,  and  A.  was  held  entitled  to  maintain  an 
action  for  this  injury,  (r)     "  The  question  is,"  says  Erle, 
C.  J.,  "  whether  the  owner  of  the  barge   has  a  right  to 
maintain  an  action  for  that  injury?  In  my  opinion  he  has 
that   right,    the  mere  temporary  outstanding   interest  in 
the  hirer  of  the  barge  amounting  to  nothing.     That  trover 
will  not  lie  for  the  conversion  of  a  chattel  out  on  loan,  is 
clear,  {s)  but  in  Tancred  v.  Allgood,  (/)  it  was  held  that 
an  action  for  a  permanent  injury  done  to  a  chattel  whilst 
the  owner's  right  to  the  possession  is  suspended,  may  be 
maintained."   {u)     "  It  is,"   adds   Williams,   J.,    "  fully 
established  that  in  the  case  of  a  bailment  not  for  reward, 
either  the  bailor  or  the  bailee  may  bring  an  action  for  an 
injury  to  the  thing  bailed  ;  but  in  the  case  of  a  hiring, 
the  owner  can  not  bring  trover,  because  he  has  tem-    [368] 
porarily  parted  with  the  possession.     It   seems  to 
me,  however,  to  be  clear  that  though  the  owner  can  not 
bring  an  action  where  there  has  been  no  permanent  injury 
to  the  chattel,    it  has   never   been   doubted   that   where 
there  is  a  permanent  injury   the  owner  may  maintain  an 
action  against  the  person  whose  wrongful  act  has  caused 
that  permanent  injury."  {x) 

The  injury  must  be  permanent,  otherwise  the  owner's 
mterest  not  being  affected,  he  can  not  sue.  (j/)  What  is  a 
permanent  injury  must  probably  be  in  each  case  a  ques- 
tion for  the  jury. 

There  are  many  wrongs  for  which  neither  trespass, 
trover,  nor  detinue  will  lie.  None  of  these  actions,  for 
example,  can  be  brought  when  the  plaintiff  suffers  from 
^nnic    a(  t  or    omission   of  the   defendants    which    is   not 


I  r\     M  I 


V.  London  and  South- Western  Rail.  Co.,  ii  C.  B.,  N.  S.,  850  ;  31 
L.  J.  220,  C.   v. 

(s)  Gordon  v.  Harper,  7  T.  R.  9. 

(/)  14  If.  &  N.  438  ;  23  L.  J.  362.  Ex. 

{it)  Miars  V.  London  and  South-Western  Rail.  Co..  11  C.  1?.,  N.  S,  854. 
judgment  of  Eri.k,  C.  J. 

(x)  Mcars  v.  London  and  Soulli-Wcstern  Rail.  Co.,  ii  C.  B.,  N.  S.,  854, 
ludgment  of  Williams,  J. 

(y)  T.-incred  v.  A!l(,'nod.  29  L.  J.  262,  Ex.  .  4  IL  &  N.  433;  Lancashire 
Wagon  Co.  v.  FitzhuRh,  6  H.  &  N.  502  ;  30  L.  f.  321,  Ex. 


390  PARTIES     TO    ACTIONS. 

actio. <able  in  itself  but  is  actionable  only  because  it  has 
cause!  perceptible  damage  to  the  plaintiff,  (.s-)  as  where 
the  p)  lintiff  suffers  from  the  negligence  of  the  defendant. 
The  general  principle,  however,  that  each  person  must 
sue  fo)'  the  wrong  which  he  has  suffered,  applies  equally, 
to  all  ( lasses  of  actions. 

Act io?is  for  negligence. — Under  this  head  are  included 
actions  of  essentially  different  kinds,  sc,  actions  for  tort 
and  actions  for  breach  of  contract.  X.,  for  example, 
drives  his  carriage  negligently,  and  runs  over  A.,  who 
sues  him  for  the  damage  done  through  his  negligence 
The  action  is  in  this  case  obviously  one  ex  delicto.  X. 
hires  a  carriage  from  A.,  and  damages  it  through  his 
neeflisrent  drivins;-.  Whatever  be  the  form  in  which  A. 
sues  X.,  the  action  is  in  this  case,  it  is  conceived,  though 
it  may  be  called  an  action  for  negligence,  one  which  in 

reality  depends  upon  the  contract  between  X.  and 
[369]    A.,   and  which   is,  therefore,  to  be  considered  an 

action  ex  contractu.  It  is  possible  that  even  in  this 
case  difference  of  opinion  may  exist  as  to  the  true  charac- 
ter of  the  action,  and  instances  certainly  occur  in  which 
it  is  difficult  to  determine  to  which  of  the  two  classes  an 
action  for  negligence  ought  to  be  referred,  {a) 

X.  and  Y.,  a  gas  company,  contracted  to  supply  A., 
the  plaintiff,  with  a  proper  pipe  to  convey  gas  from  the 
main  outside  to  a  meter  inside  his  premises.  Gas  escaped 
from  the  pipe  laid  down  under  the  contract  into  A.'s  shop. 
Owing  to  this  escape  an  explosion  of  gas  took  place,  and 
A.'s  shop  and  stock  wei-e  damaged,  and  it  was  found  by 
the  jury  on  the  trial,  that  the  escape  arose  from  a  defect 
in  the  pipe.  The  judges  of  the  Court  of  Exchequer  agreed 
in  holding  that  A.  was  entitled  to  recover  damages  from 
X.  and  Co.,  {b)  but  differed  as  to  the  nature  of  the  cause 
of  action;  Kelly,  C.  B.,  being  of  opinion  that  the  "  sub- 

(s)  See  ante. 

(a)  Compare  Burnard  v.  Haggis,  14  C.  B.,  N.  S.,  35  ;  32  L.  J.  189.  C.  P.  ; 
Rlakemore  v.  Bristol  and  Exeter  Rail.  Co.,  8  E.  &  B.  1035  ;  27  L.  J.  167,  Q.  B 
See  Coggs  v.  Bernard,  i  Smith,  L.  C,  6ih  ed.,  177;  Addison,  Torts,  3rd  ed. 
407-416. 

I^b)  Burrows  March  Gas  Co.,  L.  R.  5,  Ex.  67. 


LrENERAL     RULES.  391 

stantiai  complaint  was  rather  of  a  tort  than  of  a  breach  of 
contract,"  {c)  whilst  Martin,  B.,  conceived  the  real  cause 
of  action  to  be  a  breach  of  contract,  {d)  The  solution  ot 
any  perplexity  which  may  be  thought  to  exist  in  this  case 
is  (it  is  submitted),  that  the  defendant  had  violated  two 
distinct  rights  of  the  plaintiff,  the  one  to  receive  pipes  of 
a  certain  quality  under  the  contract,  the  other,  not  to  have 
his  property  damaged  through  the  negligence  of  the 
defendants.  If  the  explosion  had  destroyed  the  house  of 
B.,  A.'s  neighbor,  there  is  little  doubt  that  B.  could  have 
sued  X.  and  Co.,  although  there  was  no  contract  between 
them  and  him. 

Though  the  difficulty  in  distinguishing  actions  [370] 
for  negligence  which  are  actions  ex  delicto  from 
actions  for  negligence  which  are  actions  ex  contractu, 
arises  partly  from  the  nature  of  things,  it  is  increased  by 
the  practice  of  bringing  actions  for  breach  of  contract  in 
the  form  of  actions  for  tort. 

Actions  for  torts  founded  on  contract. — A  breach  of 
contract  can  (/")  be  almost  al\va3^s  represented  in  form  as 
a  tort,  i.  e.,  the  plaintiff  may  sue,  not  for  the  non-perform- 
ance of  an  agreement,  but  for  the  neglect  of  a  duty  which 
arises  from  or  is  connected  with  the  agreement.  A  main 
object  of  adopting  such  a  course  is  to  enable  a  stranger 
to  a  contract  to  sue  for  what  either  is,  or  at  any  rate  may 
be  considered  to  be,  a  breach  of  it.  {g) 

How  far  can  this  object  be  attained  ?  The  reply  to 
this  question,  and  the  general  principles  applying  to 
actions  for  torts  grounded  on  contract,  may  be  summed  up 
in  the  following  three  statements,  which  (it  is  submitted) 
may  be  fairly  deduced  from  the  cases  on  the  subject : — 

I  St.  An  action,  which  in  substance  depends  upon  a 
breach  of  contract,  can  not  be  brought  by  any  person  not 
a  party  to  the  contract,  even  though  it  be  presented  in 
the  form  of  an  action  for  tort.  (//) 

ic)  11)1(1..  70,  juiijjment  of  Kf.li.y,  C.  B. 

(d)  Ibid.,  73,  judjjmcnt  of  Martin.  B. 

(/)  See  ante. 

ig)  Rule  10. 

(h)  Tollil  V.  Shenstone    5  M    &  W.  2S3  ;  Wiiitcibottoin  v.  Wrij^ht,  10  M.  & 


S92  PARTIES     TO    ACTIONS. 

A  chano-e  in  the  form  of  an  action  can  not  snbstantially 
affect  the  liability  of  the  clcfciulant.  A  defendant,  there- 
fore, who  is  liable  merely  on  account  of  a  ci)ntract,  can 
not  be  made  liable  to  a  person  not  a  party  to  the  contract, 
simplv  because  such  stranger  to  the  contract  treats  what 
IS  really  a  breach  of  it  as  the  neglect  of  a  duty.  "  It  is 
clear  that  an  action  on  contract  can  not  be  main- 
[371]  tained  by  a  person  who  is  not  a  party  to  the  con- 
tract, and  the  same  prmciple  extends  to  an  action 
of  tort  arising  out  of  a  contract."  (?) 

X.  contracted  with  the  postmaster-general  to  provide 
a  mail-coach  along  a  certain  line  of  road,  and  M.  and 
others  contracted  to  horse  the  coach.  A.  was  hired  by 
M.  to  drive  it,  and  was  injured  while  driving  the  coach, 
through  its  breaking  down  from  latent  defects  in  its  con- 
struction. It  was  held  that  A.  had  no  right  of  action 
against  X.,  on  the  ground  that  there  was  no  privity  of 
contract  between  them,  {k)  "  There  is  a  class  of  cases," 
it  is  laid  down  in  this  case,  "  in  which  the  law  permits 
a  contract  to  be  turned  into  a  tort.  But  unless  there 
has  been  some  public  duty  undertaken,  or  public  nuisance 
committed,  they  are  all  cases  in  which  an  action  might 
have  been  maintained  upon  the  contract.  Thus,  a  carriei 
may  be  sued  either  in  assumpsit  or  on  the  case  ;  (/)  but 
there  is  no  instance  in  which  the  party  who  was  not  privy 
to  the  contract  entered  into  with  him  can  maintain  any 
such  action.  The  plaintiff  in  this  case  could  not  have 
brought  an  action  on  the  contract.  If  he  could  have  done 
so,  what  would  have  been  his  situation  if  the  postmaster- 
general  had  released  the  defendant  ?  That  would,  at  all 
events,  have  defeated  his  claim  altogether."  (ot)  In  reply 
to  the  allegation  contained  in  the  declaration,  that  it  was 
the  duty  of  the  defendant  to  keep  the  coach  in  a  safe  con- 

W.  109;  II  L.J.  415,  Ex.  ;  Longmead  v.  Ilolliday,  f)  Exch.  761  ;  20  L.  J. 
430,  Ex.  ;  Blakemore  v.  Bri-tol,  &c.,  Rail.  Co.,  8  E.  &  B.  1035  ;  27  L.  J.  167, 
Q.  B. ;  Alton  v.  Midland  Rail.  Co.,  19  C.  B.,  N.  S.,  213  ;  34  L.  J.  292,  C.  P. 

(t)  Tollit  V.  Shenslone,  5  M.  &  W.  2S9,  per  Maui.E,  B. 

(/t)  Winteibottom  v.  Wright,  10  M.  &  W.  109  ;   11  L.  J.  415,  Ex. 

(/)  See  forms  of  action,  ai//e. 

{m)  Winterbottom  v.  Wright,  10  M.  &  W.  115,  judgment  of  Abinger,  C.  B. 


GENERAL    RULES.  393 

dition,  there  was  made  the  following  observation,  which 
applies  in  substance  to  all  actions  of  the  same  description. 
"  The   duty     ....     is  shown   to  have    arisen  solely 
from  the  contract,  and  the  fallacy  consists  in  the  use  of 
the  word  duty.     If  a  duty  tc>  '"he  postmaster-general  be 
meant,  that  is  true,  but  if  a  duty  to  tne  plaintiff  be 
intended  (and  in  that  sense  the  word  is  evidently    [372] 
used),  there  was  none.     This  is  one  of  those  unfor- 
tunate cases  in  which  there  certainly  has  been   damnum 
but  it  is  damnum  absque  injuria."  {n) 

On  the  same  principle,  a  master  has  been  held  to  have 
no  ground  of  action  against  a  railway  company  for  loss  to 
him  through  injuries  to  his  servant,  sustained  by  the  latter 
through   the    negligence    of   the    company   when  being 
carried  as  a  passenger  by  them.  {0)     So,  again,  it  has  been 
settled  (/)  that  a  tradesman  who  contracts  with  an  indi- 
vidual for  the  sale  to  him  of  an  article  to  be  used  for  a 
particular  purpose  by  a  third  person,  is  not,  in  the  absence 
of  fraud,  liable  for  injury  caused  to  such  person  by  some 
defect  in  the  construction  of  the  article.     Where  X.  sold 
to  A.  a  lamp  to  be  used  by  B.,  the  wife  of  A.,  which  from 
its  defective  construction  exploded  and  injured  B.,  it  was 
held  that  an  action  against  X.  could  not  be  maintained 
by  the  wife,  there  being  no  wrong  to  her,  independent  of 
the  contract  which  was  made  with  the  husband  alone.  (/) 
If  fraud  had  existed,  the  person  injured  would  have  had  a 
ground  of  action  independently  of  the  contract,  for  the 
wrong  done  to  her.      Hence,  this  case  is  distinguishable 
from  others  which  at  first  sight  seem  to  conflict  with  the 
principle  that  no  one  not  a  party  to  the  contract  can  sue 
tor  its  breach  by  treating  it  as  a  tort.      These  cases  are 
illustrations  of  the  principle  summed  up  in  the  following 
proposition  : — 

2ndly.  A  person  injured  in  consequence  of  the  tortious 
act,  e.g.,  fraud,  of  another,  may  bring  an  action  for  such 


(n)  Winterhottom  v.  Wright.  lo  M.  &  W.  Ii6.  judgment  of  Koi.i  K.  15.    Sot 


41HU. 


(o)  Alton  V.  Mi.lland  Rail.  Co.,  19  C.  D..  N.  S.,  213  ;  34  I--  J-  292.  C.  P. 
(p)  Loiij^nic.-i'l  V.  Holliday.  6  Kx.  761. 


394  PARTIES     TO    ACTIONS. 

injury,  even  though  the  tort  to  him  be  connected  with  the 
breach  of  a  contract  made  with  a  third  person  to  which 
the  plaintiff  is  a  stranger,  {q)  It  is,  however,  essen- 
[^^y}^']  tial  that  there  should  be  a  distinct  tort  to  the  plain- 
tiff, as  distinguished  from  the  mere  breach  of  con- 
tract., 

L.,  the  father  of  A.,  the  plaintiff,  bargained  with  X.  the 
defendant,  to  buy  of  him  a  gun  for  the  use  of  himself  and 
of  A.,  and  X.  sold  the  gun  to  L.  for  the  use  of  himself  and 
A.,  by  fraudulently  warranting  the  gun  to  be  a  safe  and 
secure  gun;  A.,  the  plaintiff,  in  consequence  of  this 
warranty,  used  the  gun,  which  was  not  safe  and  secure, 
but  burst  and  injured  the  plaintiff.  It  was  held  (after  a 
verdict  for  the  plaintiff  on  the  plea  of  not  guilty,  and  pleas 
denying  the  warranty),  that  an  action  was  maintainable 
by  A.  against  X.  (r)  This  case  is  not  really,  though  it 
might  appear  to  be  so,  inconsistent  Avith  the  principle, 
that  a  stranger  to  a  contract  can  not  sue  for  its  breach. 
The  contract  was  manifestly  made  with  L.,  and  not  with 
A.,  the  plaintiff;  and  the  Court  specially  guard  them- 
selves against  being  supposed  to  decide  that  A.  could  sue 
on  the  contract.  "  We  are  not  prepared,"  it  is  said  in  the 
judgment,  [s)  "  to  rest  the  case  upon  one  of  the  grounds 
on  which  the  .  .  .  counsel  sought  to  support  his 
right  of  action  ;  namely,  that  wherever  a  duty  is  imposed 
upon  a  person  by  contract  or  otherwise,  and  that  duty  is 
violated,  any  one  who  is  injured  by  the  violation  of  it 
may  have  a  remedy  against  the  wrong-doer;  we  think 
this  action  may  be  supported  without  laying  down  a 
principle  which  would  lead  to  that  indefinite  extent  of 
liability  so  strongly  put  in  the  course  of  the  argument  on 
the  part  of  the  defendant ;  and  we  should  pause  before 
we  made  a  precedent  by  our  decision  which  would  be  an 
authority  for  an  action  against  the  vendors,  even  of  such 

(^)  Langridge  v.  Levy,  2  M.  &  W.  519  ;  4  M.  &  W.  338  ;  Gladvvell  v.  Steg- 
gall,  5  B.  &  C.  753  ;  Marshall  v.  York,  &c.,  Rail.  Co.,  11  C.  B.  655  ;  21  L.  J 
34,  C.  V. ;  George  v.  Skivington,  L.  R.  5,  Ex.  i. 

(r)  Langridge  v.   Levy,   2   M.  &  W.  519;  affirmed  in  error,  4  M.   &  W 

338. 

(/)  Ibid.,  2  M.  &  W.  530,  per  Curiam. 


GENERAL     RULES.  395 

mtftiumeiits  and  articles,  as  are  dangerous  in  themselves, 
at  the  suit  of  an}^  person  whomsoever  into  whose 
hand  they  might  happen  to  pass,  and  who  should  be  [374] 
injured  thereby."  The  ground  on  which  the 
decision  rests  is,  that  the  defendant  "  knowingly  sold  the 
gun  to  the  father  for  the  purpose  of  being  used  by  the 
plaintiff,  by  loading  and  discharging  it,  and  .  .  . 
knowingly  made  a  false  warranty  that  it  might  be  safely 
done,  in  order  to  effect  the  sale,  and  the  plaintiff  on  the 
faith  of  that  warranty,  and  believing  it  to  be  true,  .  .  . 
used  the  gun  and  thereb}^  sustained  damage,"  (/)  and  is,  in 
short,  that  there  was  "  fraud  and  damage  the  result  of 
that  fraud,  not  from  an  act  remote  and  consequential,  but 
one  contemplated  by  the  defendant  at  the  time  as  one  of 
its  results,  and  that  therefore  the  party  guilt)^  of  the  fraud 
[was]  responsible  to  the  party  injured."  {tt)  So,  where  A. 
was  induced  to  take  shares  in  a  company,  of  which  X.  was 
managing  director,  through  a  false  and  fraudulent  repre- 
sentation of  X.'s  that  the  directors  would  guarantee 
certain  advantages  to  purchasers,  and  thereby  lost  money 
on  his  shares,  an  action  was  held  to  be  maintainable  V)y  A. 
against  X.,  though  in  the  same  case  it  was  decided,  that 
A.  could  not  sue  X.  for  breach  of  contract,  {v)  and  the 
ground  taken  in  the  judgment  was,  that  no  privity  between 
the  parties  was  necessary,  and  that  imder  the  "  circum 
stances,  although  the  parties  be  entire  strangers  to  one 
another,  an  action  would  lie,"  since  it  "  would  be  strange 
if  a  man  who  had  so  suffered  damage  from  the  wronghil 
act  of  another  should  be  without  remedy."  Nor  does  the 
principle  of  the  foregoing  cases  apply  to  actions  for  fraud 
only.  "  There  arc  other  cases,  no  doubt,  besides  those  of 
fraud  in  which  a  third  person,  though  not  a  paity  to  the 
contract,  may  sue  for  the  damage  sustained,  if  it  be 
broken.  These  cases  occur  where  there  has  been  a  wrong 
done  to  that  person  for  which  he  would  have  had  a 
right  of  action,  though   no  such  contract  had  been  made 

(/)  I.anfjridge  v.  I.evy,  2  M.  &  W.  532. 

(«)  Ibid. 

(v)  Gerhard  v.  I'.alcs.  2  E.  &  H.  476  ;  22  I,.  J.  364,  Q.  B. 


30  PARTIHS     TO    ACTIONS. 

[375]  As,  for  example,  if  an  apothecary  administered 
improper  medicines  to  his  patient,  or  a  surg-eon 
imskillfully  treated  him,  and  thereby  injured  his  health, 
he  would  be  liable  to  the  patient,  even  where  the  father  or 
friend  of  the  patient  may  have  been  the  contracting  party 
with  the  apothecary  or  surgeon  ;  for  though  no  such  con- 
tract had  been  made,  the  apothecary,  if  he  gave  improper 
medicines,  or  the  surgeon,  if  he  took  him  as  a  patient  and 
unskillfully  treated  him,  would  be  liable  to  an  action  for 
a  misfeasance,  {x)  A  stage-coach  proprietor,  who  may 
have  contracted  with  a  master  to  carry  his  servant,  if  he 
is  .gnilty  of  neglect,  and  the  servant  sustains  personal 
damage,  is  liable  to  him  ;  for  it  is  a  misfeasance  towards 
him  if,  after  taking  him  as  a  passenger,  the  proprietor 
drives  without  due  care,  as  it  is  a  misfeasance  towards  any 
one  traveling  on  the  road.  So,  if  a  mason  contracts  to 
erect  a  bridge  or  other  work  in  a  public  road,  which  he 
constructs,  but  not  according  to  the  contract,  and  the 
defects  of  which  are  a  nuisance  to  the  highway,  he  may 
be  responsible  for  it  to  a  third  person  who  is  injured  by 
the  defective  construction,  and  he  can  not  be  saved  from 
the  consequences  of  his  illegal  act  in  committing  the 
nuisance  on  the  highway,  by  showing  that  he  was  also 
guilty  of  a  breach  of  contract  and  responsible  for  it.  And 
it  may  be  the  same  when  any  one  delivers  to  another  with- 
out notice  an  instrument  in  its  nature  dangerous,  or  under 
particular  circumstances,  as  a  loaded  gun,  which  he  him 
self  loaded,  and  that  other  person  to  whom  it  is  delivered 
is  injured  thereby,  or  if  he  places  it  in  a  situation  easily 
accessible  to  a  third  person  who  sustains  damage  from 
it."  {y) 

A.  bought  of  X.  a  certain  hair-wash  for  the  use  of  B., 

the  wife  of  A.     X.  represented  it  to  be  fit  to  be  used  for  a 

hair-wash     without    causing   injury  to  the  person 

[376J    using  it ;  and  knew  that  it  was  bought  by   A.  for 

the  use  of  B.    B.  used  it,  and  was  injured  thereby 

{x)  Pippin  V.  Sheppard,  il   Price,  400;   Gladwell  v.  Sleggall,  8  Scott,  60;  5 
B.  N.  C.  733- 

{y)  Longmeid  v.  Holliday,  6  Exch.  767,  768,  judgment  of  Parke,  B. 


GEXERAL     RULES.  397 

A,  and  B.  brought  an  action  against  X.  for  the  injury 
caused  to  B.,  owing  to  his  negligence  and  want  of  skill. 
Though  fraud  Avas  not  imputed  to  X.,  and  the  contract 
was  on  the  face  of  the  declaration  with  A.,  it  was  held, 
nevertheless,  on  demurrer,  that  an  action  could  be  brought 
by  A.  and  B.  {z)  "  The  question,"  said  Kelly,  C.  B,  "  is 
whether  an  action  at  the  suit  of  the  plaintiff,  her  husband, 
being  joined  for  conformity,  will  lie.  It  is  contended  that 
it  will  not.  There  was  no  warranty,  it  is  said,  either 
express  or  implied,  towards  the  purchaser  himself.  But  it 
is  not  necessary  to  enter  into  that  question,  because  the 
contract  of  sale  is  only  alleged  by  way  of  inducement,  the 
cause  of  action  being,  not  upon  that  contract,  but  for  an 
injury  caused  to  the  wife  of  the  purchaser,  by  reason  of  an 
article  being  sold  to  him  for  the  use  of  his  wife,  and  so  sold 
to  the  defendant's  knowledge,  turning  out  to  be  unfit  for 
the  purpose  for  which  it  was  bought.  There  is,  therefore, 
no  question  of  warranty  to  be  considered,  but  whether 
the  defendant,  a  chemist,  compounding  the  article  sold  for 
a  particular  purpose,  and  knowing  of  the  purpose  for 
which  it  was  bought,  is  liable  in  an  action  on  the  case  for 
unskillfulness  and  negligence  in  the  manufacture  of  it, 
whereby  the  person  who  used  it  was  injured.  And  1 
think  that,  quite  apart  from  any  question  of  warranty, 
express  or  implied,  there  was  a  duty  on  the  defendant,  the 
vendor,  to  use  ordinary  care  in  compounding  this  wash  lor 
the  hair.  Unquestionably  there  was  such  a  duty  towards 
the  purchaser,  and  it  extends,  in  my  judgment,  to  the 
person  for  whose  use  the  vendor  knew  the  compound  was 
purchased,  {a) 

3rdly.  Some  difference  of  opinion  exists  on  the 
question   whether  certain  kinds  of  injuries,  especi-    [377J 
ally  those   arising  from  the  negligence  of  carriers, 
are,  or  are  not,  torts  strictly  speaking,  /.  c,  whether  they 


(«)  George  v.  Skivington,  L.  R.  5.  Ex.  i.  B.  l)Lim;  a  married  woman,  the 
action  was  necessarily  brought  by  A.  &  B.  ,  but  in  j)rincii)lc  it  may  be  consiu 
ercd  an  action  by  B.  ;  see  Kuies  29  and  86. 

(a)  Ibid.,   3,   4,  judgment   of  Kki.i.V,   C.   B.     Conf.    Ibid.,   5,  judgment  of 
Cleasby,  B. 


398  PARTIJiS     TO    ACTIONS. 

are  wrongs  inclcpcndont  of  contract,  or  breaches  ot  con- 
tract sued  for  in  the  form  of  actions  for  tort,  {b) 

A.,  the  plaintiff,  traveled  with  his  master,  M.,  by  the 
railway  company  of  X.  &  Co. ;  M.  took  and  paid  for  A.'s 
ticket.  It  was  held  that  A.  could  maintain  an  action 
against  X.  &  Co.  for  the  loss  of  his  portmanteau,  {c) 
The  point  to  be  decided  was  admitted  to  be  whether  il 
was  necessary  to  show  a  contract  between  the  plaintiff 
and  the  company,  and  the  decision  rested  upon  the 
ground  that  the  action  was  in  substance  not  an  action  on 
contract  but  an  action  for  tort,  brought  against  the  com- 
pany as  carriers,  and  that  the  allegation  of  a  contract 
was  altogether  unnecessary,  [d) 

Where  A.,  the  pkiintiff,  a  child,  a  little  more  than 
three  years  old,  was  taken  by  his  mother  by  the  railway 
of  X.  and  Co.,  and  the  mother  took  a  ticket  for  herself, 
but  none  for  A.,  A.  was  held  entitled  to  bring  an  action 
against  X.  &  Co.  for  injuries  received  by  him  whilst  a 
passenger,  {e)  In  this  case  it  is  laid  down  by  Black- 
burn, J.,  that  "  the  right  which  a  passenger  by  railway 
has  to  be  carried  safely  does  not  depend  on  his  having 
made  a  contract,  but  that  the  fact  of  his  being  a  passen- 
ger casts  a  duty  on  the  company  to  carry  him  safely."  (/) 

A.,  the  plaintiff,  and  his  goods  were  carried  by  X.  & 
Co.,  under  a  contract  on  the  part  of  X.  &  Co.  with  the 
Indian  Government,  to  carry  certain  persons,  ot 
[378]  whom  A.  was  one  ;  A.'s  goods  were  destroyed  by 
the  defendants'  negligence.  It  was  held  that  A 
could  not  sue  X.  &  Co.  for  breach  of  contract,  but  that  he 
was  entitled  to  sue  for  an  injury  done  to  his  property 
through  their  negligence  whilst  in  their  custody,  {g) 
"  As  for  the  first  count  which  sounds,  in  contract,  and  in 
substance,  though  not  in   form,   charges  a  violation  of  a 

{b)  See,  as  to  the  nature  of  aclions  for  torts  founded  on  contract,  ante. 

{c)  Marshall  v.  York.,  &c..  Rail.  Co.,  11  C.  B.  655  ;  21  L.  J.  34,  C.  P. 

(d)  Ibid.,  663,  664,  judgment  of  Williams,  J.;  Collett  v.  London  and 
North-Western  Rail.  Co.,  16  Q.  B.  984  ;  20  L.  J.  411,  Q.  15. 

(<•)  Austin  V.  Great  Western  Rail.  Co.,  L.  R.  2,  Q.  B.  442;  36  L.  J.  201, 
Q.B. 

(/)  Ibid.,  L.  R.  2,  Q.  B.  445.     Judgment  of  Blackhurn,  J. 

{g)  Martin  v.  Great  Indian  Rail.  Co.,  L.  R.  3,  Ex.  9  ;  37  L.  T.  27,  Ex 


GENERAL    RULES.  399 

contractual  obligation,  the  plea  {h)  is  a  sufficient  defense  ; 
for  if  the  contract  was  not  with  the  plaintiff  but  with 
other  persons,  and  the  only  charge  is  one  of  non-perform- 
ance of  the  obligation  created  by  it,  no  action  can  be 
maintained,  except  by  the  person  with  whom  the  contract 
was  entered  into.  As  to  the  second  count,  which  charges 
Jie  defendant  with  negligence,  and  by  which  it  appears 
that  the  plaintiff's  luggage  was  lawfully  on  the  defend- 
ant's railway,  and  being  properly  there,  was  lost  by  their 
neglect,  I  should  have  been  disposed  to  think  that  the 
neglect  and  breach  of  duty  charged  constituted  only  a 
breach  of  duty  constituted  by  contract,  and  that  the  con- 
tract being  made  with  persons  other  than  the  plaintiff, 
the  plea  [count  ?]  was  liable  to  the  same  objection  as  the 
last.  But  my  learned  brothers  take  a  different  view,  and 
think  that  the  second  count  charges  a  wrong  done,  by 
which  the  plaintiff  is  affected  in  his  property,  and  for 
which,  therefore,  independently  of  contract,  he  has  a  right 
to  obtain  redress."  {i)  The  ground  of  the  judgment  is 
thus  stated  by  Bramwell,  B.  :  (/)— "  The  plaintiff  says, 
'You  had  my  goods  in  your  possession,  and  you  delivered 
them  wrongly,  no  matter  whether  willfully  or  negligently  ; 
either  way  you  did  wrong.'  The  defendants  reply,  '  I 
bargained  with  some  one  else  to  carry  them.'  But  how 
does  this  furnish  an  answer?  The  contiact  is  no  concern 
of  the  plaintiffs ;  the  act  was  none  the  less  a  wrong  to 
him." 

On  the  other  hand,  a  decision  before  referred  [379] 
to,  {k)  that  a  master  can  not  sue  a  railway  comixany 
for  damage  to  him  from  injuries  to  his  servant  when 
traveling  as  a  passenger  by  their  railway,  rests  avowedly 
on  the  giound  that  the  duty  of  the  company  to  carry  a 
passenger  safely  is  a  duty  arising  from  a  contract.  "  1 
Lake  the  law,"  it  is  said  by  Erle,  C.  J.,  "to  be  clear,  that 
where  a  servant  is  injured  by  matter  ex  delicto,  and  his 

(/;)  In  cfTcct  that  tlic  contract  was  not  with  the  iilaintiff. 
(*)  Ibid.,  I..  R.  3  Ex.  13,  per  Keli.y,  C.  H. 
(/)  Ibid.,  14,  judjjmeni.  of  Ukamnvkli.,  B. 

(k)  Alton   V.    Midland    Rail.  Co.,   i<;  C.  B..   N.   S.,  213  ;  34   I-    J-  2g2.  C.  P 
»ee  ante 


400  PAKTlhS     TO    ACTIONS. 

master  in  consequence  loses  the  benefit  of  his  servicos, 
the  master  may  have  an  action  against  the  wrong-doer 
for  that  consequential  damage.  The  distinction  upon 
which  I  rely  is  that  in  all  cases  where  the  master  has 
recovered  damages  in  such  an  action  the  injury  has  been 
occasioned  to  the  servant  by  the  tortious  act  of  the 
defendant.  I  find  none  where  the  damage  has  arisen  by 
means  of  a  breach  of  contract.  .  .  .  Here,  the  action 
is  founded  upon  a  contract  entered  into  between  the 
company  and  the  servant."  .  .  .  The  liability  of  the 
"  defendants,  if  any,  arises  out  of  contract,  and  there  is  no 
contract  between"  them  and  the  plaintiff.  (/) 

That  the  courts  have  not  been  quite  consistent  in  the 
view  they  have  taken  of  actions  for  torts  founded  on  con- 
tract is  (it  is  submitted)  clear.  (;;z)  But  the  difference  of 
the  view  entertained  in  the  different  cases  is  less  than  it 
might  at  first  sight  appear ;  for  though  such  cases  as 
Austin  V.  Great  Western  Rail.  Co.,  and  Marshall  v.  York, 
&c..  Rail.  Co.,  {n)  treat  the  obligation  of  carriers  as  exist- 
ing independently  of  contract,  the  decision  in  these 
[380]  cases  and  others  like  them  may  be  maintained  on 
the  ground  {0)  taken  by  some  of  the  judges,  that  a 
contract  did  exist  between  the  plaintiff  and  defend- 
ants, i.  <?.,  that  in  the  one  case  the  master,  and  in  the  other, 
the  mother  contracted  as  agent  for  the  plaintiff.  Martin 
V.  Great  Indian  Rail.  Co.,  (/)  again,  was  not  decided  with 
Lhe  approval  of  Kelly,  C.  B.,  and  is  a  somewhat  peculiar 
;ase.  It  should  further  be  noticed  that  the  earlier  cases 
n  which  the  nature  of  actions  against  carriers  is  consid- 
ired,   have  reference   to  the   admissibility   of  a   plea   in 

(/)  Ibid.,  iQ  C.  B.,  N.  S.,  236,  237,  239,  judgment  of  Erle,  C.  J. 

{m)  Compare  Martin  v.  Great  Indian  Rail.  Co.,  L.  R.  3,  Ex.  9  ;  37  L.J.  27. 
Ex. ;  Austin  v.  Great  Western  Rail.  Co.,  L.  R.  2,  Q.  B.  442  ;  36  L.  J.  2or,  Q. 
B. ;  Marshall  v.  York,  &c.,  Rail.  Co.,  21 .  L.  J.  34,  C.  P. ;  11  C.  B.  655  ;  Collett 
V.  London  and  Nonh-Western  Rail.  Co.,  16  Q.  B.  984,  with  Alton  v.  Midland 
Rail.  Co.,  19  C.  B.,  N.  S.,  213  ;  34  L.  J.  292,  C.  P.  ;  Powell  v.  Leyton,  2  N.  R 
365-370  ;  and  see  George  v.  Skivington,  L.  R.  5,  Ex.  i. 

(m)  L.  R.  2,  Q.  B.  442  ;  36  L.  J.  301,  Q.  B. 

{o)  21  L.  J.  34,  C.  P.  ;  ri  C.  B.  655.  See  esp.  Austin  v.  Great  Western 
Rail.  Co..  L.  R.  2,  Q.  B.  447,  judgment  of  Lush,  J. 

(/)    L.  R.  3  Ex.  9;   37  L-J-  27.  Ex. 


GENERAL    RULES.  401 

abatement  for  non-joinder  of  a  defendant,  and  that  his 
point  may  be  considered  to  be  one  of  procedure,  and 
therefore  dependent  upon  the  form  in  which  an  action  is 
brought  without  reference  to  its  real  nature. 


Rule  80. —  i.  Persons  who  have  a  separate  inter- 
est and  sustain  a  separate  damage  must  sue  separately. 

2.  Persons  who  have  a  separate  interest,  but  sus- 
tain a  joint  damage,  may  sue  either  jointly  or  sepa- 
rately in  respect  thereof. 

3.  Persons  who  have  a  joint  interest  must  sue 
jointly  for  an  injury  to  it.  {q) 

If  A.  and  B.  have  separate  rights  and  sustain  separate 
damage  from  the  violation  of  these  rights,  A,  and  B.  have 
each  a  perfectly  separate  cause  of  action,  and  must  sue 
separately.  If  A.  and  B.  have  separate  rights,  yet  the 
act  of  the  wrong-doer  causes  them  a  joint  damage  ;  they 
may  treat  the  wrong  either  as  a  wrong  to  both  of 
them,  and  sue  jointly  for  it,  or  as  a  wrong  to  each  [381] 
of  them  separately  and  sue  separately  for  it.  If, 
lastly,  A.  and  B.  have  a  joint  right,  that  is  to  say,  if  the 
right  invaded  is  not  a  right  of  A.  singly,  or  of  B.  singly, 
but  one  possessed  by  them  in  common,  then  they  must 
sue  jointly  for  the  wrong  done. 

For  an  assault,  false  imprisonment,  and  generally  for 
all  injuries  to  the  person,  each  person  injured  must  sue 
separately  ;  for  the  assault,  imprisonment,  &c.,  done  to 
tlie  one  is  not  the  same  as  the  assault,  imprisonment,  &c., 
done  to  the  other,  {r)  So  also  if  a  man  says  to  A.  and 
B.,  "  you  have  murdered  M.,"  or  imputes  to  them  any 
other  crime,  they  can  not  join  in  one  action  against  him 
for  speaking  these  words,  but  each  of  them  must  bring  a 
separate  action  ;  for  the  wrong  done  to  one  is  no  wrong 
done  to  the  other,  {s) 

(y)    Broom,  Parties,   2nd  ed.,  ss.  256-259  ;  Corylon   v.  Lilhebye,  2   Wms. 
Saund. 116. 

(r)  Coryton  v.  Lithebyc,  2  Wms.  Saund.  117  a. 
W  Ibid. 

26 


402  PARTIES     TO    ACTIONS. 

When  several  owners  of  mills  brought  an  action  for 
not  grinding  corn  thereat,  it  was  held  that  they  might 
join  as  phiintilTs,  since,  although  their  interests  were 
several,  yet  the  not  grinding  at  any  of  their  mills  was  a 
joint  damage.  So  the  dippers  at  Tunbridge  Wells  were 
held  entitled  to  join  in  suing  a  person  who  exercised 
the  office  of  dipper  without  being  duly  appointed;  for, 
although  severally  entitled  to  receive  gratuities  for  their 
separate  use,  yet  with  regard  to  a  stranger  disturbing 
them  in  their  employment,  they  were  all  jointly  concerned 
in  point  of  interest.  (/)  So  two  or  more  partners  may 
join  in  an  action  of  slander  for  words  spoken  of  them  in 
the  way  of  their  trade.  {71) 

If  A.  and  B.  have  a  joint  interest  which  is  injured,  or 
in  other  words,  if  the  right  interfered  with  is  a 
[382]  right  possessed  by  A.  and  B.  in  common,  they  must 
{x)  join  in  an  action  for  an  interference  with  it. 
Therefore,  the  joint  owners  of  a  chattel,  and  partners 
generally,  must  join  in  an  action  for  injury  to  the  common 
property,  {y) 

Rule  81. — The  right  of  action  for  a  tort  can  not 
be  transferred  or  assigned,  {z) 

This  is  merely  an  application  to  actions  for  tort  of  the 
general  principle  that  a  chose  in  action  is  not  assignable. 


Rule   82. — Where  several  persons  have  a  joint 
right  of  action  for  a  tort  it  passes  on  the   death  of 

{t)  Weller  V.  Baker,  2  Wms.  Saund.  116,  note  2.  See  Broom,  Parties,  2nd 
ed.,  s.  257. 

(m)  Cooke  V.  Batchelor,  3  B.  &  P.  150;  2  Wms.  Saund.  117  a,  117  b;  Le 
P'anu  V.  Malcomson,  i  H.  L.  C.  637  ;  Lindley,  Partnership,  2nd  ed.,  481,  482. 
As  to  actions  by  partners,  see  Chapter  XXL 

(jr)  But  see,  for  the  effect  of  non-joinder  of  plaintiffs  in  actions  of  tort, 
Chapter  XXXIV. 

(_)')  Sedgworth  v.  Overend,  7  T.  R.  279  ;  Addison  v.  Overend,  6  T.  R.  766  ; 
Longman  v.  Pole,  I  Moo.  &  Mai.  223  ;  Coryton  v.  Lithebye,  2  Wms.  Saund 
116  a.     See  Chapter  XXL 

{z)  See  Rule  6. 


GENERAL    RULES. 


403 


each  to  the  survivors,  and  on  the  death  of  the  last 
(if  the  right  of  action  be  one  that  survives)  (a)  to  his 
representatives.^ 

The  rule  is  the  same  as  in  actions  on  contract,  {b) 
Where  the  person  injured  can  sue  either  separately  or 
jointly,  the  separate  right  of  action  passes,  if  it  survives 
at  all,  to  the  personal  representatives  of  the  deceased. 

(ff)  See  Rules  92  and  93. 

(b)  See  Rule  16.  But  the  non-joinder  of  a  plaintiff  in  action  for  tort  has  no 
greater  effect  than  that  of  enabling  the  defendant  to  plead  the  non-joinder  in 
abalemeat.     See  Rule  1 17. 


I.  In  replevin  upon  the  death  of 
the  plaintiff,  the  executor  will  be 
allowed  to  prosecute  the  suit.  Mel- 
lon V.  Baldwin,  4  Ma-^s.  481  ;  Reist 
V.  Heilbrenner,  11  Serg.  &  R.  301. 
An  action  for  diverting  a  water- 
course dies  with  the  plaintiff. 
Holmes  v.  Moore,  5  Pick.  258  ; 
Ten  Eyck  v.  Runk,  31  N.  J.  L.  428. 
Maryland  statute  of  1785  was  only 
to  prevent  the  abatement  of  those 
actions  which  did  not  die  with  the 
person.  Baltimore,  &c.,  Ry.  Co.  v. 
Ritchie,  31  Md.  199 ;  Schott  v.  Sage, 
4  Phila.  87.  Maine  statute  pro- 
viding that  actions  for  trespass  shall 
survive  is  unqualified.  Withee  v. 
Brooks,  65  Me.  18;  Prescott  v. 
Knoles,62Me.2/8;  Little  v.  Conant, 
2  Pick.  527  ;  Demond  v.  City  of  Bos- 
ton, 7  Gray,  544.  Action  for  bodily 
injury  by  the  default  of  defendant 
survives  under  Vermont  statutes. 
Bradley  v.  Andrews,  5 1  Vt.  528 ;  Cox 
V.  New  York  Cent.,  &c.,  Ry.  Co.,  1 1 
Hun,  623.  The  statute  allowing 
actions  for  torts  to  survive  have 
been  strictly  construed.  Drake  v. 
Curtis,  I  Cush.  409;  Cutting  v. 
Tower,  14  Gray,  184.     An  action  of 


trespass  quare  clausum  fregit  sur- 
vived to  the  co-plaintiffs.  Boynton 
V.  Rees,  9  Pick.  531;  and  so  an 
action  for  obstruction  of  a  right  of 
way,  upon  the  death  of  one  of  two 
co-plaintiffs,  goes  to  the  survivor. 
Richardson  v.  Pond,  15  Gray,  389. 
An  action  of  ejectment  does  not 
abate  by  the  death  of  the  lessee  of 
the  plaintiff,  though  he  be  only  a 
tenant  for  life.  Wilson  v.  Hall,  13 
Ired.  489  ;  Milliken  v.  Marlin,  66 
111.  17  ;  nor  does  an  action  for  tres- 
pass for  mere  profits  ;  Afundell  v. 
Springer,  71  Pa.  St.  400;  Means  v. 
Presbyterian  Church,  3  Pa.  St.  95. 
When  husband  and  wife  joined  in 
an  action  on  the  case  for  obstruct- 
ing a  right  of  way  appurtenant  to 
the  inheritance  of  the  wife,  the  hus- 
band was  allowed  to  proceed  to  re- 
cover judgment  after  the  death  o( 
his  wife.  Jefcoat  v.  Knott,  1 1  Rich. 
654,  The  husband  in  this  case 
might  have  alone  sued  for  damage 
to  such  right  as  was  exclusively  his, 
or  he  may  have  joined  his  wife  for 
such  damage  as  was  done  ihcm 
both. 


404  PARTIES     TO    ACTIONS. 


CHAPTER    XX. 

PRINCIPAL    AND    AGENT. 

Rule  83. — A  principal  (or  employer)  can  never 
sue  for  what  is  merely  an  injury  to  his  agent  (or 
servant),  nor  an  agent  (or  servant)  for  what  is  merely 
an  injury  to  his  principal  (or  employer). 

A  principal  or  employer  can  in  many  cases  sue  for 
what  is  called  an  injury  to  his  servant,  but  the  real  ground 
on  which  he  sues  is,  as  already  pointed  ou*t,  not  the 
injur)'^  to  his  servant,  but  the  injury  to  himself  resulting 
from  or  connected  with  the  injury  to  his  servant.  So  an 
agent  may  in  some  cases  sue  for  what  is  popularly  called 
an  injury  to  his  employer,  e.  g.,  a  carrier  can  bring  an 
action  for  the  conversion  of  goods  confided  to  his  care  ; 
but  though  this  case  is  somewhat  peculiar,  the  ground 
on  which  the  agent  sues  is  not  the  injury  to  his  employer, 
but  the  interference  with  his  own  rights  as  possessor  oi 
the  goods,  {a) 

{a)  See  ante,  and  post,  458. 


PARTNERS.  405 


CHAPTER  XXI. 


PARTNERS. 


Rule  84. — All  the  partners  in  a  firm,  or  mem- 
bers of  an  unincorporated  company,  {a)  should  join 
in  an  action  for  wrong  done  to  the  firm  or  company. 

As  a  firm  is  nothing-  but  the  persons  who  compose 
it,  {b)  the  rules  with  reference  to  actions  by  partners  are 
simply  applications  of  the  rules  as  to  joinder  of  plaintiffs 
in  an  action  for  tort,  {c)  Where  an  injury  has  been  done 
to  their  joint  rights,  e.  g.,  where  the  property  of  the  firm 
has  been  converted,  all  the  members  of  the  firm.  A.,  B. 
and  C,  must  join  in  an  action  for  the  wrong. 

The  same  wrongful  act  may  give  a  separate  right 
of  action  to  the  individual  partner  A.,  and  to  the  firm 
collectively,  i.  e.,  to  all  the  partners,  A.,  B.,  and  C. ;  for  the 
same  act  may  interfere  at  once  with  the  individual  rights 
of  A.,  and  with  the  joint  rights  of  A.,  B.,  and  C.  "  These 
doctrines  are  illustrated  by  actions  for  libel.  A  libel 
can  clearly  be  made  the  subject  of  an  action  in  the  name 
of  all  the  partners,  if  the  firm  has  been  damnified  ;  {d)  and 
if  the  libel  reflects  directly  on  one  partner,  and  through 
him  on  the  firm,  two  actions  will  lie,  viz.,  one  bv 
the  party  libeled,  and  the  other  by  him  and  his  [385] 
co-partners ;  but  the  damage  in  the  first  action 
must  not  appear  to  be  joint,  nor  must  that  in  the  second 

(a)  An  unincorporated  company,  as  already  pointed  out,  is  in  snhsiance  a 
firm.  See,  however,  as  to  companies  empowered  to  sue  by  a  public  oflicer, 
ante.     Sec  Rule  117. 

{/>)  .See  ante.  (r)  Rule  Po.  81. 

(li)  Cooke  V.  FJatchelor,  3  B.  &  P.  150  ;  Foster  v.  Lawson.  3  Ring.  4  2} 
Williams  v.  Beaumont,  ro  Bing.  260;  Metropolitan  Saloon  Company  v  1  law- 
kins,  4  H.  &  N.  87  ;  28  L.  J.  201,  Ex. 


4o6  PARTIES     TO    ACTIONS. 

appear  to  be  confined  to  the  libeled  partner  only,  [e)  If 
one  partner  is  libeled,  and  the  firm  can  not  be  shown  to 
have  been  damnified,  an  action  for  the  libel  should  be 
brought  in  the  name  of  the  individual  partner  aggrieved, 
and  not  by  the  firm  ;  (/)  and  he  may  sue  alone,  although 
the  libel  more  particularly  affects  him  in  the  way  of  his 
business."  i^g) 

Change  of  partners. — All  the  partners  should  join  who 
were  members  of  the  firm  at  the  time  when  the  wrong 
was  committed.  If,  therefore,  X.  converts  the  goods  of 
A.,  B.,  and  C,  and  before  any  action  is  brought,  C.  leaves 
the  firm  and  D.  enters  into  it,  the  persons  who  should 
properly  sue  for  the  tort  are  A.,  B.,  and  C,  since  the 
wrong  was  an  interference  with  their  right  of  possession ; 
and  similarly  it  would  seem  that  an  action  for  a  libel  on 
the  firm  of  A.  &  Co.  ought  to  be  brought  by  the  persons 
who  composed  the  firm  at  the  time  of  the  publication  of 
the  libel. 

Can  one  partner  S7ie  another  for  tort  ? — One  partner  can, 
of  course,  sue  another  for  torts  unconnected  with  the 
partnership.  It  seems,  moreover,  that  where  one  partner 
commits  a  wrong  against  his  fellow-partners,  the  latter 
can  join  in  suing  him.  "  If  a  person,"  says  Lord  Tenter- 
den,  "  colludes  with  one  partner  in  a  firm  to  enable  hinj 
to  injure  the  other  partners,  they  can  maintain  a  joint 
action  against  the  persons  so  colluding."  (ft) 

From  the  fact  that  partners  are  joint  owners  of  the 
partnership  property,  combined  with  the  rule  that  the 
same  person  can  not  be  both  plaintiff  and  defendant,  (z)  it 
results  that  one  partner  often  can  not  bring  trover 
[386]  against  another  under  circumstances  in  which  the 
action  would  be  maintainable  against  a  stranger. 
A  joint  owner  of  goods  can  not  maintain  trover  against 
his  co-owner  in  respect  of  any  act  of  the  latter  consistent 

(e)  Harris   v.  Bevington,  8  C.  &  P.  708  ;  Forster  v.  Lawson,  3  Bing.  452  ;   2 
Wms.  Saund.  117  b. ;  Haythorne  v.  Lawson,  3,  C.  &  P.  196. 
(/)  Soloman  v.  Med^x,  i  Stark,  191. 
{g)  X  Lindley,  Partnership,  2nd  ed.,  481. 
{h)  Longman  v.  Pole,  Moo.  &  Mai.  233. 
(t)  Rule  5. 


PARTNERS.  407 

with  his  ownership  ;  but  if  the  latter  is  guilty  of  an  act 
inconsistent  with  joint  ownership,  as  a  complete  destruc- 
tion of  the  goods  or  sale  of  them  in  market  overt,  it 
amounts  to  a  conversion,  for  which  the  joint  owner  can 
sue.  {J)  Thus,  where  A.  and  B.  were  members  of  a 
friendly  society,  and  A.  was  entrusted  with  a  box  contain- 
ing the  sums  of  money  subscribed,  and  was  bound  b\' 
bond  to  keep  it  safely,  it  was  held,  that  he  could  not 
maintain  trover  against  B.,  and  against  a  stranger,  when 
B.,  having  got  possession  of  the  box,  carried  it  away  and 
delivered  it  to  the  stranger,  {k)  So  a  mere  sale  by  B., 
not  in  market  overt,  does  not  amount  to  a  conversion,  or 
give  the  joint  owner,  A.,  a  right  to  sue  him.  (/)  So,  the 
creation  of  a  lien  by  one  of  two  joint  owners  does  not 
amount  to  a  conversion.  But  if  B.  sells  the  goods  in 
market  overt,  so  as  to  pass  the  whole  property  to  the 
purchaser,  or  if  he  destroys  them,  if,  in  short,  he  does 
any  act  totally  inconsistent  with  the  joint  ownership,  this 
is  a  conversion,  and  A.  may  bring  trover  against  him.  (w) 


Rule  85. — An  action  for  an  injury  to  the  property 
of  a  firm  must  be  brought : 

1.  On    the    bankruptcy   {n)  of    the  firm,  by   the 
trustee  or  trustees  of  the  bankrupts  ; 

2.  On  the  bankruptcy  of  one  or  more  part- 
ners, by  the  solvent  partners,  together  with  the    [387] 
trustee  or  trustees  of  the  bankrupt   partner  or 
partners,  (o) 

The  explanation  of  this  rule,  in  reference  to  actions 
ex  contractu,  (/)  is  applicable  to  actions  ex  delicto. 

(/')    Iliggins   V.  Thomas,  8    Q.  15.  908  ;   Jones  v.  Brown,  25  L.   J.  34;,,  Ex.; 
Mayhew  v.  Ilcrrick,  7  C.  IJ.  229. 

(Jt)  Holliday  V.  Camscll,  8  T.  R.  358 

(/)    M.-iyhew  v.  Hcrrick,  7  C.  IJ.  229. 

(»/)  See  Hullen,  I'lcadings,  3rd  ed.,  272,  716. 

(«)   Rules  89  and  90. 

(o)  Sec  as  to  unincorporated  companies,  anle. 

(/)  See  antf. 


4oS  PAKTIJiS     TO     ACTIONS. 

An  action  for  tort  can,  liowcvcr,  st)metimcs  be  Dronghl 
by  a  solvent  partner  and  the  trustee,  when  it  could  not 
have  been  maintained  by  the  solvent  partner  and  the 
bankrupt  if  the  latter  had  remained  solvent,  for  the  trust- 
ee's title  relates  or  dates  back  to  the  act  of  bankruptcy, 
and  he,  therefore,  can  often  treat  dealings  of  the  bankrupt 
as  null.  The  trustee  can  also  treat  as  void  some  acts  ot 
the  bankrupt,  on  account  of  their  fraudulent  character. 
Hence,  if  A.  and  B.  are  paxtners,  and  B.,  after  he  has 
committed  an  act  of  bankruptcy,  indorses  a-  partnership 
bill,  such  indorsement  confers  no  title  on  the  indorsee, 
and  A.  and  B.'s  trustee  can  bring  an  action  against  the 
indorsee  for  it.  {q)  So,  where  A.  and  B.  were  partners, 
and  B.  fraudulently  indorsed  certain  bills  of  exxhange 
belonging  to  the  partnership  to  X.,  in  payment  of  a  pri- 
vate debt,  X.  being  aware  of  the  fraud,  it  was  held  on 
B.'s  bankruptcy  that  the  assignees  might  disaffirm  the 
transaction  as  a  fraudulent  preference,  and  join  with  A. 
in  an  action  against  X.  (r) 

As  the  trustee  of  a  bankrupt  becomes  a  tenant  in 
common  {s)  with  the  solvent  partner  of  the  property  ol 
the  firm  whereof  the  bankrupt  was  a  member,  he  fre- 
quently is  unable  to  make  use  of  the  doctrine  of  relation, 
m  order  to  recover  the  bankrupt's  interest  in  goods  which 
have  been  sold  by  the  solvent  partner  after  the  commis- 
sion of  the  act  of  bankruptcy,  [t)  That  is  to  say,  i: 
[388]  A.  and  B.  are  partner;,,  and  after  the  commission  ol 
an  act  of  bankruptcy  by  B.,  A.  sells  partnership 
goods  to  X.,  B.'s  trustee  can  sue  neither  A.  nor  X.  for  the 
value  of  the  goods,  though  i^  B.,  not  being  in  partnership, 
and  after  the  commission  of  an  act  of  bankruptcy,  sohl 
goods  to  X.,  who  knew  of  the  act  of  bankruptcy,  the 
trustee  could,  even  though  X.  had  paid  for  the  goods, 
bring  an  action  of  trover  against  him. 


ig)  Thomason  v.  Frere,  10  East,  418. 
(r)  Heiibut  v.  Nevill,  L.  R.  4,  C.  P.  354. 
(s)  See  ante. 

(t)  Fox  V.  Hanbury,  Cowp.  445  ;    Smith  v.  Stokes,  1   East,  363  ;     Buckley  v. 
Barber,  6  Ex.  182  ;  2  Lindley,  Partmrship,  2nd  ed.,  1118-1123. 


HUSBAND    AND     WIFE.  409 


CHAPTER    XXII. 

HUSBAND    AND    WIFE. 

Rule  86.— A  husband  and  wife  must  sue  jointly 
in  three  cases  : — 

1.  For  injuries  to  the  person,  character,  or  prop- 
erty of  the  wife,  committed  before  marriage  ; 

2.  For  injuries  to  the  person  or  character  of  the 
wife  committed  during  coverture  ;  and, 

3.  For  injuries  for  which  the  wife  must  sue  as 
executrix  or  administratrix,  {a) 


For  all  wrongs  done  to  a  woman  before  marriage,  {b) 
she  and  her  husband  must  sue  jointly  during  coverture. 
If,  for  example,  X.  assaults  B.,  an  unmarried  woman,  or 
trespasses  upon  her  land,  or  appropriates  her  goods,  and 
B.  afterwards  marries  A.,  an  action  for  the  wrong  must 
be  brought  in  the  joint  names  of  A.  and  B.  The  action 
is  in  fact  brought  by  B.,  and  A.  is  joined  merely  (to  use 
the  technical  expression)  for  the  sake  of  conformity  ;  i.  e., 
to  comply  with  the  rule  that  a  married  woman  can  not 
sue  alone.  The  same  rule,  it  would  seem,  applies  if  X. 
libels  B.,  or  slanders  her  before  marriage.  If,  however, 
the  slanderous  expressions  are  not  words  actionable 
in  themselves,  but  actioiiable  only  because  they  [390] 
cause  damage,  and  tlic  damage  results  from  them 

(n)  See  Bullen,  Plcadin-^s,  3r<l  fd.,  338,  339.  l-'or  the  explanation  of  llie 
rule  that  a  wife  can  not,  during  coverture,  sue  without  her  husband,  and  of  the 
exceptions  iherito,  see  ante.  Tlie  rule  and  the  exceptions  apply  as  well  to 
actions  for  tort  as  to  actions  on  contract. 

(li)  Milner  v.  Milnes.  6  T.  R.  627,  631.  See  Lush,  Practice,  3rd  ed.,  158  ; 
Bullen,  Pleadings.  3rd  ed.    339. 


410  PA/^T//:S     TO    ACTIONS. 

after  the  marriage,  A.,  the  husband,  must  apparcncly  sue 
alone,  (r) 

To  the  rule  uiuler  consideration  there  are  to  be  found 
one  or  two  apparent  exceptions.  As  "  all  the  personal 
chattels  of  the  wife  [vest]  by  the  marriage  in  the  husband, 
where  sfoods  bailed  or  come  to  the  hands  of  another  before 
marriage  are  detained  afterwards,  the  husband  may  sue 
alone  as  on  his  own  possession.  (^/)  .  .  .  If  a  nuisance 
be  erected  before  marriage,  and  continued  afterwards, 
producing  a  temporary  damage  to  the  husband,  he  alone 
may  sue.  ie)  If  a  feme  sole  possessed  of  a  term  for  years 
in  a  close  has  in  right  thereof  a  way  through  an  adjoining 
field,  and  the  owner  obstructs  the  way  by  building  on  it, 
and  the  feme  marries,  the  husband  may  maintain  an  action 
for  the  continuance  of  the  obstruction."  (/)  i g)  But  in 
these  and  like  cases  the  husband's  right  to  sue  alone 
depends  upon  an  injury  to  him  taking  place  after  the 
marriage,  e.  g.,  by  the  continuance  of  the  obstruction  to 
the  right  of  way,  and  it  is  often  the  case  that  there  may 
be  two  actions,  one  in  the  name  of  the  husband  and  wife 
for  the  original  wrong,  and  another  in  the  name  of  the 
husband  only  for  a  continuance  of  it.  (//) 

With  respect  to  injuries  to  the  person  of  the  wife  dur- 
ing coverture,  the  husband  and  wife  must  join  in  suing. 
But  the  wrongful  act,  e.  g.,  an  assault  upon  the  wife,  may 
involve  two  distinct  wrongs,  and  thus  give  two  distinct 
causes  of  action.  The  first  is  the  assault  upon  the  wife, 
and  the  second  is  the  damage  caused  thereb}- 
[391]   (through  loss  of  service)  to  the  husband.  H)     The 

(c)  The  offense  sued  for  is  here  in  reality  the  causing  of  damage  by  (.ertain 
slanderous  expressions,  and  as  this  injury  is  not  committed  until  the  dainnge  is 
caused,  /.  e.,  until  after  the  marriage,  it  affords  no  real  exception  to  the  princi- 
ple that  a  wife  must  join  in  an  action  for  wron^js  done  to  her  before  marriage. 
Compare  Saunders  v.  Edwards,  I  Sid.  95  ;  Coleman  v.  Harcourt,  I  Lev.  140, 
cited  Saville  v.  Sweeney,  4  B.  &  Ad.,  514  ;  Selwyn,  N.  P.,  13th  ed.,  245  ;  and 
see  Backhouse  v.  Bonomi,  9  H.  L.  C.  403. 

{d)  Blackburne  v.  Greaves,  2  Lev.  107 

{e)  Frosdick  v.  Sterling,  2  Mod.  269. 

(/)  Baker  v.  Brereman,  Cro.  Car.  419. 

Ig)  Lush,  Practice,  3rd  ed.,  158,  159. 

{h)  Ibid. 

(/)  See  ante. 


HUSBAND    AND     WIFE.  411 

husband  can  not  sue  alone  merely  for  the  injury  to  the 
wife,  but  he  may  sue  alone  for  the  damages  occasioned 
thereby  to  himself  solely.  On  the  other  hand,  the 
husband  and  wife  can  not,  in  an  action  brought  solely  for 
the  injury  to  the  Avife,  claim  compensation  for  the  injury 
to  the  husband  from  the  loss  of  the  wife's  services.  In 
order  to  obtain  full  compensation  two  actions  used  to  be 
necessary  :  one  by  the  husband  and  wife  for  the  injury  to 
the  wife  ;  another  by  the  husband  alone  for  the  damage 
caused  thereby  to  him.  By  the  Common  Law  Procedure 
Act,  18^2,  s.  40,  "  in  any  action  brought  by  a  man  and  his 
wife  for  an  injury  done  to  the  wife,  in  respect  of  which 
she  is  necessaril}'^  joined  as  co-plaintiff,  the  husband  may 
add  thereto  claims  in  his  own  right  ;  and  separate  actions 
brought  in  respect  of  such  claims  may  be  consolidated,  it 
the  court  or  a  judge  shall  think  fit;  provided,  that  in  the 
case  of  the  death  of  either  plaintiff,  such  suit,  so  far  only 
as  relates  to  the  causes  of  action,  if  any,  which  do  not 
survive  shall  abate."  This  section  is  not  imperative,  and 
after  a  recovery  in  the  joint  action  for  the  injur}^  to  the 
wife,  the  husband  may  bring  a  separate  action  tor  his 
claim  in  his  own  right  in  respect  of  the  same  injury.  {J) 
The  claims  which  the  husband  may  add  in  his  own  right 
are  not  limited  to  those  which  arise  consequentially  from 
the  injury  to  the  wife,  {k)  (/) 

In  like  manner,  in  an  action  for  slander  of  the  wife,  it  the 
words  are  actionable  per  se,  the  husband  and  wife  must 
join  for  the  direct  injury ;  im)  but  the  husband  must  sue 
alone  for  consequential  damage  ;  {n)  and  so  also,  if  the 
words  are  not  actionable  in  themselves,  but  only 
because  they  cause  damage  ;  (^)  and  now  (though  [392] 
the  husband  may  sue  alone  for  the  damage  to  him- 
i-elf)  there  may,  under  the  section  of  the   Common   Law 

{J)  Brockbank  v.  Whilehavcii  lunction    Rail.  Co.,  7    II.  &    N.  834  ,   31   L, 
J.  349.  Ex. 

(k)  Ilemstead  v.  Phrt-nix  Gas  Co.,  3  II.  &  C.  745  ;  34  L.  J,  108,  Ex. 

(/)  I?ulkn,  Pleadings,  3:d  ed„  338. 

(/«)   Dengate  v.  Gardiner,  4  M.  &  W.  5. 

(«)  II)id. 

(0)  Saviile  v.  Sweeney,  4  B.  &  Ad.  514  ;   Broom,  Parties   2nd  ed.,  s.  2S1. 


412  PARTIHS     TO    ACTIONS. 

Procedure  Act,  1852,  before  cited,  be  combined  in  one 
declaratiiMi  claims  for  the  direct  injury  to  the  wife,  and 
for  the  indirect  or  consequential  damage  to  the  husband. 
If  the  slander  is  actionable  only  because  of  the  damage  it 
causes,  since  that  damage  is  damage  to  the  husband,  he 
must  sue  alone,  and  the  wife  can  not  join. 

Where  a  wife  has  a  right  of  action  in  a  representative 
character  as  executrix  or  administratrix,  husband  and 
wife  must  join  in  suing.  (/) 

Effect  of  death. — In  cases  where  the  wife  must  join, 
the  right  of  action  remains  on  the  death  of  her  husband 
in  the  wife,  and  she,  and  not  her  husband's  representa- 
tives, is  the  proper  person  to  sue  for  the  injury  ;  on  the 
death  of  the  wife,  the  right  of  action  passes  to  her  repre- 
sentative, unless  the  right  of  action  depends  upon  her 
character  of  executrix  or  administratrix,  in  which  case 
it  passes  to  the  representative  of  the  testator  or  intestate. 

Effect  of  divorce. — Divorce,  it  seems,  has  the  same 
effect  on  the  wife's  rights  of  action  as  the  death  of  the 
husband.  (^) 


Rule  87. — A  husband  may  sue  either  alone  01 
jointly  with  his  wife  for  all  injuries  done  during 
coverture  to  real  property,  of  which  the  husband  and 
wife  are  seised,  or  to  which  they  are  entitled  in  right 
of  the  wife,  (r) 

[393]  The  rule  as  to  the  joinder  of  husband  and  wife  in 

actions  for  injuries  in  respect  of  the  latter's  real 
property  during  coverture,  is  not  quite  clear.  In  many 
cases  the  husband  and  wife  may  sue  jointly,  {s)  It  is  also 
clear  that  in    some   cases   the    husband   may   sue   alone. 

(p)  Broom,  Parties,  2nd  ed.,  s.  286  ;  Serres  v.  Dodd,  2  15.  &  P.  407  ;  Roper, 
Husband  and  Wife,  2nd  ed.,  189  ;  Thompson  v.  Pinchell,  ir  Mod.  177. 

{q)  See  ante  ;  Capel  v.  Powell,  34  L.  J.  168,  C.  P.  ;  Head  v.  Briscoe,  5  C. 
&  P.  484.     Chapter  XXX. 

{t'j  Bullen,  Pleadings,  3rd  ed.,  339;  Bidgood  v.  Way,  2  Blackstone,  1236; 
Wallisv.  Harrison,  5  M.  &  W.  142  ;   I  Wms.  Saiind.  291  m. 

{s)  Co.  Litt.  185. 


HUSBAXD    AND     WIFE.  413 

Where,  for  example,  the  husband  having  an  interest  in 
the  wife's  real  estate,  grants  leases  thereof  during  their 
joint  lives,  reserving  the  rent  to  himself,  and  making  his 
wife  no  party  to  the  lease,  he  can  sue  alone  for  damage  to 
his  reversionary  estate,  (/)  and  the  husband  frequently 
may  sue  alone  for  damage  which  does  not  affect  the  sub- 
stance of  the  wife's  freehold  estate,  as  for  breaking  and 
entering  into  a  close  and  carrying  away  the  grass,  though 
in  this  case  he  might  also  sue  jointly  with  his  wife,  {it) 
If  the  husband  is  the  actual  occupier  of  his  wife's  freehold 
lands  and  tenements,  he  may  sue  alone  for  all  damage 
done  to  his  beneficial  occupation  and  enjo3"ment  of  the 
property,  {v)  The  general  rule,  therefore,  seems  to  be, 
that  for  injuries  in  respect  of  the  wife's  real  property,  the 
husband  has  usually  the  option  of  suing  either  alone  or 
jointly  with  his  wife  ;  but  it  is  possibly  subject  to  the  fol- 
lowing exception  : 

Exception. — Where  a  permanent  injury  is  done  to  the  wife't 
freehold. 

When  the  wrong  is  committed  "  on  the  wife's  freehold 
or  inheritance,  and  it  goes  to  affect  either  the  title  or  the 
substance  of  the  estate,  the  wife  is  a  necessary  party,  {x) 
For  cutting  down  trees,  removing  the  soil,  diverting 
water,  erecting  a  nuisance,  &c.,  both  must  join.  So,  the 
wife  must  join  in  detinue  or  trover  for  the  title  deeds;  {y) 
or  slander  of  her  title,  and  for  a  deed  granting  her 
a  rent-charge  for  life."  (.sr)  (a)  Such  deeds,  &c.,  it  [394] 
may  be  remarked,  seem  to  be  considered  part  of 
the  realty,  and,  therefore,  not  to  fall  under  the  rule  with 
regard  to  injuries  with  respect  to  personalty,  {b) 

(t)  Wallis  V.  Harrison,  5  M.  &  W.  142  ;  i  Wms.  Saund.  291  m.     See  Adcli- 
son,  Torts,  3rd  ed.,  Q17. 

(m)  Lush,  Practice.  3rd  ed.,  160. 
(v)  Addison,  Torts,  3rd  ed.,  917. 
(x)  Hacon,  Abr.,  Baron  and  Feme,  K. 
(y)  I  Kill.,  Abr/,  347. 
(t)  Noy,  70. 

(a)  Lush,  Practice.  3rd  ccL,  160. 

(b)  If  the  wife's  property  has,  prior  to  tlic  marriage,  been  conveyed  to  trust 


414  PARTIES     TO    ACTIONS. 

DeatJi. — In  cases  where  the  wife  may  join  in  suinj^,  it 
would  seem  that  on  the  death  of  the  husband  the  right  of 
action  passes  to  the  wife,  and  on  the  death  of  the  wife  to 
the  husband. 


Rule  88. — The  husband  must  sue  alone  in  respect 
of  any  injuries  to  personal  property  committed  dur- 
ing coverture. 

As  all  the  personal  property  of  the  wife  vests  in  the 
husband  exclusively,  he  alone  can  sue  for  injuries  to  it. 
The  right  to  sue  for  such  injuries  never  having  been  the 
wife's,  it  remains  her  husband's  on  her  death,  and  on  his 
death  passes  to  his  representatives,  [c) 

ees,  the  husband  will  have  no  legal  interest  in  the  property,  and  no  right  to 
maintain  an  action  for  any  injur)'  that  may  be  done  to  it.  (Addison,  Torts,  3rd 
ed.,  917.) 

{c)  Non-joinder  and  Mis-joinder. — For  the  results  of  errors  as  to  joinder  in 
action  by  husband  and  wife,  see  Rule  32.  The  remarks  there  made  apply 
mutatis  mutandis,  to  actions  for  tort. 

Bankruptcy. — Upon  the  bankruptcy  of  the  husband,  the  trustee  in  bank- 
ruptcy must  join  with  the  wife  in  suing  upon  causes  of  action  in  right  of  the 
wife,  which,  if  vested  in  the  husband,  would  pass  to  the  trustee  ;  as  for  a  con- 
version of  the  wife's  goods  before  marriage,  see  Richbell  v.  Alexander,  10  C.  B., 
N.  S.,  32.J  ;  30  L.  J.  268,  C.  P. ;  Sherrington  v.  Yates,  12  M.  &  W.  855.  See. 
Chapter  XVII. 


BANKRUPT    AND     TRUSTEE.  415 


CHAPTER  XXIII. 

BANKRUPT     AND    TRUSTEE. 

Rule  89. — The  trustee  {a)  and  not  the  bankrupt 
must  sue  for  injuries  to  the  real  or  personal  prop- 
erty of  the  bankrupt  committed  before  the  bank- 
ruptcy. 

As  the  object  ot  the  law  {b)  is  to  benefit  the  creditors 
by  making  all  the  pecuniary  means  and  property  of  the 
bankrupt  available  to  their  payment,  it  has  in  furtherance 
of  this  object  been  construed  largely  so  as  to  pass,  not 
only  what  in  strictness  may  be  called  the  property  and 
debts  of  the  bankrupt,  but  also  those  rights  of  action  to 
which  he  was  entitled  for  the  purpose  of  recovering  in 
specie,  real  or  personal  property,  or  damages  in  respect  ot 
that  which  has  been  unlawfully  diminished  in  value,  with- 
held or  taken  from  him.  {c)  This  result  is  now  directly 
effected  by  the  statutory  enactment  which  passes  the 
bankrupt's  things  in  action  to  his  trustee,  {d)  It  X.  con- 
verts the  goods  of  A.,  or  injures  A.  by  a  fraudulent 
misrepresentation;  {e)  or  by  erecting  a  nuisance,  [396] 
decreases  the  value  of  the  land  of  A.,  and  A.  there- 

(a)  The  trustee  can  certainly  sue  in  all  cases  in  which  the  assignees  could 
sue  ;  but  it  is  not  clear  whether  he  can  not  sue  in  many  cases  in  which  they 
could  not,  since  the  bankrupt's  things  in  action  pass  to  the  trustee  under  bank- 
ruptcy Act,  1869,  ss.  4,  15,  17.  When,  therefore,  in  the  course  of  this  chapter, 
it  is  laid  down  that,  in  certain  cases  the  trustee  can  not  sue,  the  statement 
must  be  received  as  representing  the  former  law,  and  as  being  of  duublful  cor- 
rectness under  the  present  Act. 

(b)  See  ante. 

(f)  Rogers   v.  Spence,  13    M.   &   W.   580.  53l-     Hroom,  I'arlics,    2nd   ed..  s. 

291  a. 

(d)  Bankruptcy  Act,  l86g.  ss.  4,  15. 

{e)  Hodgson  V.  Si<lney,  L.  R.  i,  Ex.  313.  See,  also.  Hancock  v.  CalTyn.  8 
Bing.  358;  Broom.  Parties.  2nd  ed.,  s.  2oo. 


4i6  PARTIES     TO    ACTIONS. 

upon  becomes  bankrupt,  A.'s  rii^ht  to  sue  vests  \n  tne 
trustee.  "  In  no  case  where  the  right  of  action,  being  of 
such  a  nature  as  will  pass  to  the  assignees,  has  accrued  to 
the  bankrupt  in  respect  of  matter  before  the  bankruptcy, 
can  the  bankrupt  sue.  Even  a  disclaimer  of  the  assignees 
will  in  such  a  case  enure  only  for  the  benefit  of  the  defend- 
ant, and  not  for  that  of  the  bankrupt."  (/)  If,  that  is  to 
say,  X.  converts  A.'s  goods  before  A.'s  bankruptcy,  A. 
can  not,  even  with  the  permission  of  his  trustee,  sue  X. 
for  the  wrong,  {g) 

The  trustee  can  further  sue  in  several  instances  in 
which  the  bankrupt,  even  had  he  remained  solvent,  would 
have  had  no  cause  of  action.  {It) 

The  trustee,  in  the  first  place,  owing  to  his  title  relating 
back  to  the  commencement  of  the  bankruptcy,  i.  e.,  the 
date,  speaking  generally,  at  which  the  act  of  bankruptcy 
was  committed,  {i)  can  bring  trover  against  any  one  who 
with  knowledge  of  the  act  of  bankruptcy  has  purchased 
his  goods  from  the  bankrupt.  If,  that  is  to  say,  A.  com- 
mits an  act  of  bankruptcy,  and  then  sells  goods  to  X., 
who  knows  of  the  act  having  been  committed,  X.,  though 
he  may  have  paid  the  full  price  of  the  goods,  is  liable  to 
an  action  of  trover  by  A.'s  trustee,  who,  in  other  words, 
is  (subject  to  restrictions  for  a  protection  of  bona  fide  pur- 
chasers) {k)  able  to  treat  the  goods  as  his  own,  and  like 
any  other  owner,  maintain  an  action  against  a  person  who 
has  bought  them  from  a  vendor  who  had  no  right 
[397]  to  sell  them;  (/)  so  the  trustee  can  bring  trover 
? ;e,ainst  a  sheriff  who,  after  notice  of  an  act  of  bank- 
ruptcy takes  the  bankrupt's  goods  in  execution  and  sells 
•■hem    \'"i) 

1'/'.  trustee,  in  the  second  place,  becomes  the  owner 

(/)  ■/  '.-.riffith  &  Holmes,  Bankruptcy,  2nd  ed.,  934,  935. 

{g)  ':,'.•  Hillaiy  v.  Morris,  5  C.  &  P.  6  ;  Lea  v.  Telfer,  i  C.  &  P.  146.  For 
the  effect  (,\  the  bankruptcy  of  a  plaintiff  after  the  commencement  of  an  action, 
tee  ante. 

{h)  2  L'ndley,  Partnership,  2nd  ed.,  1097. 

(i)  Ba-iV.ruptcy  Act,  1869,  s.  il. 

\k)  Ibid.,  s.  95. 

(/)  See  Chapter  XXV. 

{m)  See  Cooper  v.  Chitty,  2  Smith,  L.  C,  6th  ed.,  435,  and  notes. 


BANKRUPT    AND     TRUSTEE.  417 

of  goods  of  which  the  bankrupt  is  allowed  to  have  pos- 
session and  to  be  reputed  owner  by  the  true  owner  at  the 
commencement  of  the  bankruptcy.  (;/)  Hence,  if  X.,  their 
true  owner,  after  knowledge  of  the  commission  of  an  act 
of  bankruptcy,  takes  them  away  from  A.,  whom  he  has 
suffered  to  be  their  reputed  owner,  A.'s  trustee  can  sue  X. 
The  trustee,  in  the  third  place,  can,  independently  of 
the  rights  which  he  derives  from  the  relation  of  his  title, 
treat  many  transactions  of  the  bankrupt's  as  void  on  the 
ground  of  fraudulent  preference,  and  thus  obtain  the 
right  to  sue  persons  to  whom  the  bankrupt  has  conveyed 
property.  {0) 

Exception, — Trespass  to  land  before  bankruptcy. 

The  trustee  can  not  sue  for  a  trespass  to  the  land  of 
the  bankrupt,  or  for  a  mere  seizure  of  the  plaintiff's  goods 
before  bankruptcy.  (/)  For  such  trespass  or  mere  seizure 
an  action  must  be  brought,  if  at  all,  by  the  bankrupt.  It 
admits,  however,  of  doubt  whether  the  trustee  can  not 
sue  for  any  damage  which  the  trespass  or  seizure  may 
cause  to  the  value  of  the  property.  This  exception 
appears  to  be  merely  an  extension  of  the  rule  that  the 
bankrupt  must  sue  for  injuries  to  his  person  or  feel- 
ings, {q) 


Rule  90. — For  injuries  to  property  acquired    [398] 
by  the  bankrupt  after   bankruptcy,  either   the 
trustee  may  sue  or  the  bankrupt  may  sue  if  the  trustee 
does  not  interfere. 

Trustee  may  sue. — The  trustee  may  treat  the  property 
o[  the  bankrupt  as  his  own,  and  sue  for  any  interference 
with  his  rights  over  it. 

(m)  Bankruptcy  Act,  i86g,  ss.  ii,  15. 

(0)  I  Griffith  &  Holmes,  Hankruptcy,  2nd  ed.,  132. 

{ p)  Ibid.,  302;  Brewer  v.  Dew,  11  M.  &  W.  625;  12  L.  J.  448,  Ex. 
Rofjcrs  V.  Spence,  13  M.  &  W.  571  ;  12  CI.  &  F.  700  (Ex.  Ch.)  ;  Clark  v.  Cal- 
vert, &  Taunt.  742. 

{g)  See  Rule  91. 
27 


41 8  PARTIES     TO    ACTIONS. 

Bankrupt  may  sue. — Though  the  property  of  a  bank- 
rupt vests  in  the  trustee,  yet  after  he  has  been  adjudicated 
a  bankrupt,  and  before  he  has  obtained  the  order  of  dis- 
cliargc,  he  may  acquire  property  in  chattels  which  none 
but  the  trustee  can  defeat,  (r)  Hence,  if  A.  becomes 
bankrupt,  and  after  his  bankruptcy  purchases  goods,  his 
trustee  has  a  right  to  take  them  from  him,  but  no  one  else 
has,  and  A.  ma}'  maintain  an  action  of  trover  against 
any  one  who  does  so ;  since  if  the  trustee  suffers  him  to 
treat  such  after-acquired  property  as  his  own,  no  third 
person  can  defend  himself  from  an  action  by  setting  up  a 
title  upon  which  the  trustee  does  not  think  fit  to  insist,  {s) 
But  he  can  neither  retain  the  property  against  the  trustee, 
(/)  nor  maintain  trespass  for  seizing  his  goods  against  any 
one  who,  after  the  trespass,  obtains  a  surrender  of  the 
trustee's  interest  in  the  goods  seized,  since  this  is  in  fact 
a  ratification  of  the  seizure  by  the  trustee,  who  has  a 
right  to  take  the  goods,  {ji) 


[399]  Rule  91. — The  bankrupt  alone  can  sue  foi 

injuries  to  his  person,  feelings,  or  reputation. 

"  Assignees  of  a  bankrupt  are  not  to  make  profit  of  a 
man's  wounded  feelings ;  causes  of  action  which  are 
.  .  .  .  purel}"  personal  do  not  pass  to  the  assignees, 
but  the  right  to  sue  remains  with  the  bankrupt."  iv) 
Hence,  the  trustee  can  not  sue  for  the  seduction  of  the 
bankrupt's  daughter,  {x)  for  libel,  {^y)  or  for  an  assault.  {£) 
The  principle  of  this  rule  has  received  a  wide  extension : 
"  Causes  of  action,    ....    arising  out  of  a  wrong,  per- 

(r)  Webb  v.  Fox,  7  T.  R.  398  ;  Fowler  v.  Down,  i  B.  &  P.  48.  See  Fyson 
V.  Chambers,  9  M.  &  W.  460.  See  i  Griffith  &  Holmes,  Bankruptcy,  2nd  ed., 
302. 

{$)  See  Hancock  v.  Caffyn,  8  Bing.  366. 

(/)  Niasv.  Adamson,  3  B.  &  Aid.  225. 

{it)  Hull  V  Pickersgill,  I  B.  &  B.  282  ;  Fyson  v.  Chambers,  9  M.  &  W.  46a 

{v)  Howard  v.  Crowther,  8  M.  &  \V.  604,  per  Abinger,  C.  B. 

(x)  Ibid. 

{y)  Ibid. 

(2)  Drake  V.  Beckam,  ri  M.  &  W   315, 


BANKRUPT    AND     TRUSTEE.  419 

sonal  to  the  bankrupt,  for  which  he  would  be  entitled  to 
a  remed}-  whether  his  property  were  diminished  or 
impaired  or  not,  are  clearly  not  within  the  letter,  and  have 
never  been  held  to  be  within  the  spirit  of  the  enactments 
{with  regard  to  bankruptcy],  even  in  cases  where  injuries 
of  this  kind  may  have  been  accompanied  or  followed  by 
loss  of  property,  and  to  this  class  ....  the  action 
of  trespass  qii.  cl.  fr.,  and  that  of  trespass  to  the  goods  of 
the  bankrupt  must  be  considered  to  belong.  These 
rights  of  action  are  given  in  respect  of  the  immediate 
and  present  violation  of  the  possession  of  the  bankrupt, 
independently  of  his  rights  of  property, — they  are  an 
extension  of  that  protection  which  the  law  throws  around 
the  person,  and  substantial  damages  may  be  recovered  in 
respect  of  such  rights,  though  no  loss  or  diminution  in 
value  of  property  may  have  occurred,  and  even  where 
such  an  incident  has  accompanied  or  follojved  a  wrong  of 
this  description,  the  primary  personal  injury  to  the  bank- 
rupt, being  the  principal  and  essential  cause  of  action 
still  remains  in  him,  and  does  not  vest  in  the  assignee 
either  as  his  property  or  his  debts."  {a)  There  is  a 
difficulty  in  determining  the  exact  limits  of  this  [400] 
rule.  If  a  trespass  to  land  or  goods  is  to  be  con- 
sidered in  the  light  of  a  merely  personal  wrong,  such, 
e.  g.,  as  libel,  it  would  seem  to  follow  that  the  trustee  can 
not  bring  an  action  for  a  trespass  to  the  bankrupt's  goods 
acquired  after  bankruptcy  ;  yet  the  most  the  cases  seem 
actually  to  decide  is  that  the  assignees  could  not  sue  for  a 
mere  trespass  committed  before  bankruptcy,  {b)  It  has 
been  suggested,  {c)  that  where  a  trespass  committed  before 
the  bankruptcy  occasions  damage  to  the  bankrupt's 
property,  "  it  may  be  that  the  law  will  give  an  action  to 
the  bankrupt  for  the  personal  injury  sustained  by  him, 
and  to  the  [trustee]  for  [the]  injury  done  to  the  prop- 
erty." {d)     But  this  view,   though   a  strict  result  of  the 

(.1)   Rogers  v.  Spciice,  13  M.  &  W.  580,  581,  per  CuklAM  ;  Clark  v.  C;ilvert 
6  Taunt.  742;  Topham  v.  Dent,  6  Hinij.  515  ;  Broom's  Parlies,  2nd  ed.,  291  a 
{b)  See  I  Griffith  &  Holmes,  Bankruptcy.  2nd  cd.,  302. 
(c)  Ibid. 
(</)   Rogers  V.  .ip-.nce,  12  CI.&  Fin.  700,  720,  per  Lori  Camimiell. 


420  rARTIES     TO    ACTIONS. 

principle  that  each  person  mnst  sue  for  the  injury  done 
to  himself,  is  opposed  to  judicial  dicta  in  a  recent  case,  {e) 
Where  a  bankrupt  sued  an  attorney,  firstly,  for  negli- 
gence in  defending  an  action,  whereby  the  then  defendant 
(the  bankrupt)  was  charged  in  execution ;  and  secondly, 
for  negligence,  whereby  the  plaintiff  lost  rents,  &c.,  it 
was  held  that  for  the  first  cause  of  action  the  bankrupt 
had  a  right  to  sue  because  it  arose  out  of  a  personal 
wrong,  for  which  the  party  would  be  entitled  to  sue 
whether  his  property  were  injured  or  not,  and  which 
therefore  did  not  pass  to  the  assignees  ;  but  that  for  the 
other  cause  of  action  the  plaintiff  could  not  sue,  because 
it  arose  from  an  injury  to  the  property,  and  passed  there- 
fore to  the  assignees.  (/) 

A  bankrupt  can  not  maintain  an  action  for  what 
[401]    is  in  reality  an  injury  to  property,  by  alleging  an 
injury  to,  his  character  and   credit  resulting   there- 
from, {g) 

{e)  See  Hodgson  v.  Sidney,  L.  R.  i  Ex.  313,  esp.  315,  316,  judgment  of 
Bramwell,  B. 

(  /)  Wetherell  v.  Julius,  19  L.  J.  367,  C.  P. ;  10  C.  B.  267.  The  damages 
recovered  during  tiie  continuance  of  the  bankruptcy  are,  it  seems,  the  property 
v)f  the  trustee.     Bankruptcy  Act,  1869,  s.  15,  cl.  3,  and  s.  it. 

(g)  Hodgson  V.  Sidney,  L.  R.  i  Ex.  313. 

It  may  be  worth  while  to  call  attention  to  the  fact  that  the  question 
whether  a  bankrupt  can,  in  any  case  whatever,  commence  an  action  in  his  own 
name  during  the  continuance  of  the  bankruptcy  is,  under  the  present  Act,  at 
least  open  to  doubt,  since  that  Act  transfers  to  the  trustee  the  bankrupt's 
things  in  action. 

See  Rule  40  as  to  the  effect  of  bringing  an  action  in  the  name  of  the  bank- 
rupt when  it  ought  to  be  brought  in  the  name  of  the  trustee,  or  vice  versa. 


EXECUTORS  AND  ADMINISTRATORS.      421 


CHAPTER   XXIV. 

EXECUTORS    AND    ADMINISTRATORS. 

Rule  92. — The  personal  representatives  of  the 
deceased  (z.  e.,  his  executors  or  administrators)  can 
sue  for  injuries  to  the  property  of  the  deceased  done 
during  his  lifetime. 

"  It  was  a  principle  of  the   Common  Law,  that  if  an 
injury  was   done  either   to   the   person    or   property   of 
another,  for  which  damages  only  could  be  recovered  in 
satisfaction,  the  action  died  with  th-e  person  to  whom,  or 
by  whom,  the  wrong  was  done.     Thus  where  the  action 
was  founded  on  any  malfeasance  or  misfeasance,  was  a 
tort,  or  arose   ex   delicto,   such   as   trespass   for   taking 
goods,  «S:c.,  trover,  false  imprisonment,  assault  and  bat- 
tery, slander,  deceit,  diverting  a  watercourse,  obstructing 
lights,  escape,  and  many   other   cases   of  the  like  kind, 
where  the  declaration  imputes  a  tort  done  either  to  the 
person    or   property  of  another,  and    the   plea  must  be 
'not  guilty,'— the  rule  was  actio  personaHs  moritur  cum 
persona."  {a)     This  principle  has,  as  regards  an  execu- 
tor's or  administrator's  right  to  sue  for  wrongs  to  his  tes- 
tator, been  so  far  modified  that  what  was  formerly  the  rule 
may  now  be  fairly  considered  the  exception.     But  it  is  of 
importance  to  remember  that  this  right  to  sue  is  an  cxccj)- 
tion  to  the  maxim  of  the  common  law,  and  depends  almost 
entirely  upon  statutory  provisions,  {b) 

Injuries  to  the  personal  property.— T\\q  right  to    [403J 
sue  for  injuries  to  the  testator's  or  intestate's  per- 

(a)  I   Williams,  Executors.  6lh  cil..  743. 

(b)  Not  wholly,   for  rcplt-vin  and    (icliiiuc  could   i)u  hnniglit   independently 
of  statute.     See  I  Williams,  Executors.  6th  cd..  7.10. 


422  PARTfES     TO     ACTIONS. 

sonal  estate  depciuls  upon  4  lulw.  III.  c.  2  (extended  by 
15  Edw  III  c.  5). 

The  statute  lias  been  liberally  construed,  so  that  an 
executor  or  administrator  has  now  the  same  actions  for 
any  injur)-  done  to  the  personal  estate  of  the  deceased 
durino;  his  lifetime,  whcreb}'  it  has  become  less  beneficial 
to  the  executor  or  administrator,  as  the  deceased  himself 
might  have  had.  {c)  So  the  executor,  etc.,  may  bring 
trespass  or  trover,  {d)  and  may  bring  an  action  against 
the  sheriff  for  a  false  return,  {e)  and  generally  may  sue 
for  injuries  done  to  the  personal  estate  of  the  deceased 
during  his  lifetime.  (/) 

Injuries  to  real  property. — The  right  to  sue  for  injuries 
done  to  the  real  estate  of  the  deceased  in  his  lifetime 
depends  on  3  «&  4  Will.  IV.  c.  42,  s.  2. 

Under  this  statute  an  executor  or  administrator  may 
bring  an  action  for  injuries  to  the  real  estate  of  the  testa- 
tor or  intestate,  provided  that : 

1st.  The  injury  was  committed  within  six  calendar 
nonths  before  the  death  of  the  deceased  ; 

2nd.  The  action  is  brought  [i.  e.,  the  writ  is  sued  out) 
<vithin  a  year  after  the  death  of  the  deceased. 

Under  this  act,  if  X.  diverts  A.'s  watercourse,  obstructs 
his  lights,  trespasses  on  his  land,  or  commits  any  other 
wrong  of  the  like  riature,  and  A.  dies  within  six  months 
after  the  commission  of  the  wrong,  A.'s  executor,  &c.,  can 
sue  B.,  provided  that  the  action  be  commenced  within  a 
year  after  A.'s  death. 

The  restrictions  imposed  on  actions  for  injuries  to  the 

real  estate  do  not  apply  to  actions  for  injuries  to 

[404]    the  personal  estate.     If,  for  example,  X.  converts 

A.'s  goods,  and  A.  dies  a  year  after  the  conversion, 

A.'s  executor  can  still  sue  X.  for  the  tort. 


(c)  I  Wms.  Saund.  217,  note  I. 

(d)  Russell's  Case,  5  Coke,  27  a. 

{/)  Williams  v.  Cary,  4  Mod.  403  ;  Berwick  v.  Andrews,  6  Mod.  126. 

(/)  I  Williams,  Executors,  6th  ed.,  744,  745.  It  appears  to  be  a  moot 
point  whether  the  term  "  real  estate,"  as  used  in  the  statute,  includes  chattels 
real.  Compare  i  Williams,  Executors,  6th  ed.,  748,  note  (z),  with  3  &  4  Will 
IV.   c.  42,  s.  2. 


EXECUTORS  AND  ADMINISTRATORS. 


423 


Rule  93. — The  personal  representatives  of  the 
deceased  can  not  sue  for  injuries  to  the  person,  feel- 
ings, or  reputation  of  the  deceased.  (^)  ' 

The  rule  that  an  action  for  a  personal  wrong  {h)  dies 

{g)  Compare  Rule  91. 

(h)  I'rovided,  of  course,  that  the  assault  does  not  cause  A.'s  death,  and  thus 
fall  within  the  exception  afterwards  mentioned.  It  may  be  well  to  notice  that 
there  is  no  legal  remedy  for  a  libel  on  a  deceased  person. 


I.  So  at  common  law  for  the 
death  of  a  person.  Moran  v.  Hol- 
ligns,  125  Mass.  93;  Leonard  v. 
Columbia,  &c.,  Co.,  84  N.  Y.  51  ; 
Kramer  v.  Street  Ry.  Co.,  25  Cal. 
435  ;  and  an  action  for  injury  re- 
sulting from  negligence  does  not 
survive;  Arundel  v.  Springer,  71 
Pa.  St.  400.  But  when  an  action  is 
given  for  death  by  wrongful  act  of 
another,  the  executor  or  adminis- 
trator must  prosecute  the  action. 
Kramer  v.  Street  Ry.  Co.,  25  Cal. 
435;  Weidner  v.  Rankin,  26  Ohio 
St.  524;  Meara  v.  Holbrook,  20 
Ohio  St.  137  ;  and  he  may  sue  even 
when  the  injury  occurred  in  another 
state,  if  the  statute  there  is  the  same 
as  in  that  where  the  action  is 
brought.  Leonard  v.  Columbia, 
&c.,  Co.,  84  N.  Y.  54;  Richardson 
V.  New  York,  &c.  Ry.  Co.,  98  Mass. 
90  ;  Needham  v.  Grand  Trunk  Ry. 
Co.,  38  Vt.  299;  Marcy  v.  Marcy, 
32  Conn.  314;  State  v.  Railway 
Co.,  45  Md.  44;  Woodward  v. 
Railway  Co.,  10  Ohio.  St.  122  ; 
■Perry  v.  Carmichael,  95  111.  529. 

By  the  code  an  action  survives 
against  the  administrator  for  inju- 
ries inflicted  by  the  deceased.  Car- 
son v.  McFadden,  10  Iowa,  9. 

And  an  action  for  the  negligence 
or  deceit  of  the  deceased  will  lie 
against  his  personal  representative. 


Tichenor  v.  Hayes,  41  N.  J.  L.  193. 
So  for  timber  carried  away  by  the 
testate  in  his  lifetime.  Cooper  v. 
Crane,  9  N.  J.  L.  173;  Dickenson 
V.  StoU,  24  N.  J.  L.  551  ;  Browne  v. 
Blick,  3  ^'lurph.  517;  Shields  v. 
Lawrence,  72  N.  C.  43;  Smith  v. 
Nicholson,  6  La.  Ann.  705  ;  but  not 
for  conversion  in  absence  of  statute. 
Cherry  v.  Hardin,  4  Heisk.  200; 
Terhune  v.  Bray,  16  N.  J.  L.  54; 
Schott  V.  Sage,  4  Phila.  87  ;  but  by 
statute,  action  for  erecting  a  nui- 
sance survives.  Aldrich  v,  How- 
ard. 8  R.  I.  125,  Brayton,  J.,  say- 
ing :  "  The  statute  provides  not 
only  for  cases  of  trespass  where  the 
injury  is  not  the  direct  but  the  im- 
mediate effect  of  a  wrongful  act 
forcibly  done,  but  for  actions  of  the 
case,  where  the  dangers  are  not 
immediate,  but  to  be  recoverable 
must  be  the  natural  and  proximate 
consequence  of  the  wrongful  act 
alleged.  If  by  direct  injury  to  the 
property  is  intended  an  injury  to  it, 
thus  resulting  as  the  natural  conse- 
quence of  the  act  charged  against 
the  deceased,  the  injury  here  com- 
plained of  [building  a  stable  near  a 
hotel]  would  seem  to  be  of  that 
character  and  to  be  the  natural  and 
proximate  consequence  of  the  nui- 
sance charged." 


424  PARTIES     TO    ACTIONS. 

with  the  person,  still  apjilics  to  those  wrongs  which  are 
of  a  strictly  personal  character.  (/) 

ExccpHon. — Actions  where  deceased  killed  by  negligence. 

Under  9  t^  10  Vict.  c.  93,  an  action  is  maintainable 
against  any  person  who  causes  the  death  of  another  by 
his  wrongful  act,  neglect,  or  default,  provided  that  the 
wrongful  act  would,  if  the  person  injured  had  not  died, 
have  entitled  him  to  maintain  an  action  for  the  injury. 
This  action  depends  wholly  upon  statute,  and  being  insti- 
tuted for  the  purpose  of  enabling  persons  who  have 
suffered  pecuniary  damage  by  the  death  of  a  relation, 
e.  g-.,  a  parent,  to  obtain  compensation  for  the  wrong* 
doer — for  example,  the  railway  company  by  whose  default 
or  negligence  his  death  was  caused — is  in  several  respects 
peculiar. 

I  St.  The  cause  of  action  is  not,  strictly  speaking,  the 
death  of  the  person  killed,  e.  g.,  the  railway  passt3nger,  but 
the  injur}^  to  him.  The  result  is  that  if  A.  is  injured  in 
a  railway  accident,  and  afterwards  accepts  from  the  com- 
pany a  sum  of  money  in  satisfaction  of  the  injury  done  to 
him,  and  then  dies  in  consequence  of  the  bodily 
[405]  injury  which  he  has  received,  no  action  can  be 
brought  against  the  company  by  his  representatives. 
{k)  "  The  intention  of  the  statute  is  not  to  make  the 
wrong-doer  pay  damages  twice  for  the  same  wrongful 
act,  but  to  enable  the  representatives  of  the  person  injured 
to  recover  in  a  case  where  the  maxim,  actio  personalis 
moritur  cum  persona  would  have  applied.  It  only  points 
to  a  case  where  the  party  injured  has  not  recovered  com- 
pensation against  the  wrcnig-doer."  (/)  Yet  the  damages 
to  be  recovered  are  estimated  with  reference,  not  to  the 
damages  which  the  deceased  could  have  recovered  if  he 


(j)  See  Broom,  Maxims,  4th  ed.,  876. 

(k)  Read  v.  Great  Eastern  Rail.  Co.,  L.  R.  3,  Q.  15  55=  ;  37  L.  J.  278 
Q.B. 

(/)  Ibid.,  557,  i^er  Lush,  J.  ;  but  compare  Pym  v.  Great  Northern  Rail.  Co.. 
4  B.  &  S.  396  ;  32  L.  J.  377,  Q.  B.  (Ex.  Ch.). 


EXECUTORS  AND  ADMINISTRATORS.      425 

had  lived,  but  to  the  loss  inflicted  upon  the  persons,  e.  g.^ 
his  children,  for  whose  benefit  the  action  is  brought. 

2ndly.  The  action  must  be  brought  by  or  in  the 
name  of  the  executor  or  the  administrator  of  the  de- 
ceased, {i}i)  for  the  benefit  of  certain  persons,  viz.,  a  wife, 
husband,  parent,  or  child  ;  («)  or  if  it  is  not  brought  by 
such  executor  or  administrator  within  six  months,  then 
in  the  name  of  the  persons  beneficially  interested  in  the 
result,  ip) 

3rdly.  It  must  be  brought  within  twelve  calendar 
months  after  the  death  of  the  deceased. 

4thly.  Not  more  than  one  action  can  be  brought  with 
respect  to  the  same  subject-matter  of  complaint.  (/) 

5thly.  The  plaintiff  on  the  record  must  deliver  a  full 
particular  of  the  person  or  persons  for  whom  or  on  whose 
behalf  the  action  is  brought,  and  of  the  nature  of  the 
clanu.  {q) 

6thly.  The  amount  recovered  is  divided  among 
the  parties  on  whose  behalf  the  action   is  brought,    [406] 
in  such  shares  as  the  jur}^  may  direct,  if) 

7thly.  The  action  is  maintainable  although  the  death 
of  the  deceased  has  been  caused  under  such  circumstances 
as  amount  in  law  to  felony,  {s) 

Rule  94. — The  personal  representatives  of  the 
deceased  can  sue  for  injuries  to  his  personal  property 
committed  after  his  death. 

(w)  g  &  10  Vict.  c.  g3,  s.  2. 

(«)  /.  e.,  legitimate  child  (Dickinson  v.  North-Eastein  Rail.  Co.,  2  H.  &  C. 
535  ;  33  L.  J.  qi,  Ex.)  See  9  &  10  Vict.  c.  93,  s.  5,  for  the  interpretation  {^iven 
10  the  wordr,  "  parent,"  &c. 

(p)  27  &  28  Vict.  c.  95,  s.  I. 

(/)  9  &  10  Vict.  c.  93,  s.  3. 

(y)   Iliid.,  s.  4. 

(r)  9  &  10  Vict.  c.  93,  s.  2. 

U)  Il)id..  s.  I. 


420  PARTIES     TO    ACTIONS. 

U[>on  the  death  oi  the  testator  or  intestate,  it  any 
injury  is  afterwards  done  to  his  goods  and  chattels,  the 
executor  or  administrator  may  bring  an  action  for 
damages  for  the  tort,  and  under  such  circumstances  he 
has  his  choice,  either  to  sue  in  his  representative  charac- 
ter, and  declare  as  executor  or  administrator,  or  to  bring 
the  action  in  his  own  name  and  in  his  individual  charac- 
ter, {t)  The  ground  of  this  choice  is,  that  on  the  death 
of  the  testator  or  intest^ite,  his  executors  or  administrators 
are  in  point  of  law  the  owners  of  the  goods  which  belonged 
to  him,  and  consequently,  whether  in  actual  possession  of 
them  or  not,  may  declare,  as  any  other  person  may,  for 
interferences  with  their  rights  over  their  own  property. 
Hence,  an  executor  or  administrator  mav  maintain  tres- 
pass  or  trover  for  taking  away  the  goods  of  the  deceased 
after  his  death,  whether  the  executor,  &c.,  have  ever  been 
in  actual  possession  of  the  goods  or  not,  for  the  property 
draws  to  it,  as  it  is  said,  the  possession,  {u)  It  is  scarcely 
necessary  to  add  that  an  executor  does  not  inherit  greater 
rights  than  those  possessed  by  the  testator.  If,  for  exam- 
ple, the  testator's  goods  are  in  the  hands  of  X.,  \vho 
[407]  has  a  lien  upon  them,  the  executor  can  not  bring 
trover  against  X.  as  long  as  the  lien  lasts.  Though 
all  the  personal  estate  of  the  testator  or  intestace  passes  to 
his  representatives,  the  right  to  bring  actions  for  injuries  to 
it  after  his  death  is  to  some  extent  affected  by  the  nature 
of  the  property. 

All  the  movable  goods,  though  in  ever  so  maciy  dif- 
ferent and  distant  places,  vest  in  the  executor  in  posses- 
sion immediately  on  the  testator's  death,  [v)  Hence,  for 
an  injury  to  them,  e.  g.,  a  conversion,  an  executor  can  sue? 
as  already  pointed  out,  the  moment  it  is  committed.  So, 
again,  the  reversion  of  a  term  which  the  testator  has 
granted  for  a  part  of  the  term  (as  e.  g.,  where  A.,  the 
testator,  is  lessee  of  land  for  ninety-nine  years  and  has 
leased  it  for  twenty-one  years  to  B.),  is  in  the  executor 

(/)  I  Williams,  Executors,  6th  ed.,  820,  S22. 

(u)  See  a9tte. 

{v)  2  Wms.  Saund.  47  b,  note  i  ;   l  Williams,  Executors,  6th  ed.,  600 


EXECUTORS  AND  ADMLVISTRATORS.      427 

immediately  b}''  the  death  of  the  testator,  {w)  and,  there- 
fore, the  executor  can  immediately  bring  an  action  for 
any  act  injurious  to  his  reversionar}'^  interest. 

But  things  immovable,  such  as  leases  for  years  of 
"land  or  houses,  are  not  considered  to  be  in  the  possession 
of  the  executor  or  administrator  before  entry.  And  since, 
as  before  pointed  out,  the  right  to  bring  an  action  for 
trespass  to  land  depends,  not  upon  the  right  to  possession, 
but  upon  possession,  {x)  an  executor  or  administrator 
can  not  sue  a  person  who,  after  the  testator's  death,  tres- 
passes on  his  property,  until  he  has  entered. 

The  executor  or  administrator  may  after  entry  bring 
an  action  for  trespasses  committed  before  entry.  ( j) 

Relation  of  title. — An  executor's  title,  depends,  as 
already  pointed  out,  {£)  upon  the  will;  an  administrator's 
upon  the  letters  of  administration.  Hence,  an  executor 
can  commence  an  action  before  he  takes  out  probate,  for 
an  injury  to  the  personal  property  of  the  deceased, 
whilst  an  administrator  can  not  do  so  until  the  [408] 
administration  has  been  granted  to  him.  It  might, 
therefore,  be  supposed  to  follow,  that  if,  after  the  death 
of  A.,  the  testator,  and  before  letters  of  administration 
are  taken  out,  X.  converts  his  goods,  the  administrator 
could  not  sue  X.  in  trover.  But  this  consequence  is 
avoided  by  the  doctrine  that  for  some  purposes  an 
administrator's  title  relates  back  to  the  death  of  the 
intestate.  Hence,  an  administrator  may  have  an  action  ol 
trespass,  {a)  or  trover,  for  the  goods  of  the  intestate  taken 
by  a  wrong-doer  before  letters  of  administration  were 
granted.  So  it  would  seem  that  the  grant  of  administra- 
tifm  will  have  the  effect  of  vesting  leasehold  property  in 
the  administrator  bv  relation,  so  as  to  enable  him  to  bring 
actions  in  respect  of  that  property,  for  all  matters  affect- 
'ing  the  same,  subsequent  to  the  death  of  the  intestate. 

(7/')  Ibid.,  600,  f)or  ;  Tratdc  v.  King,  T.  Jdnes,  170. 
(jt)  See  atite. 

\y)  See  B.nneit  v.  GuiMforfl,  ri   Exch.  if)  ;  24    I..  J.  281,  Ex.  ;  Radcliffe  T. 
Anderson,  E.  H.  &  E.  806  ;  29  L.  J.  128,  Q.  n. 
(«)  .See  aftU. 
(a)  Thaiph  v.  Stallwood,  5  M.  &  G.  lbo\   12  I,.  J.  241    C.  P 


428  PARTIES     TO    ACTIONS. 

In  other  words,  the  letters  of  administration,  when  g.  anted, 
give  an  administrator,  speaking  generally,  the  same  rights 
of  suing  wrong-doers  as  are  possessed  by  an  executor,  {b) 


Rule   95. — The   real    representative    of  the    de- 
ceased can  not  sue  for  any  wrong  done  to  him. 

The  right  to  sue  passes,  if  it  passes  at  all,  to  a  deceased 
person's  personal,  and  not  to  his  real  representatives  ; 
nor  can  the  latter  sue  for  injury  done  to  his  property  after 
death.  When  an  heir  sues  for  an  injury  to  the  real  estate, 
which  he  inherits,  he  does  not  sue  for  any  injury  to  the 
testator's  property,  but  for  an  interference  with  his  own 
rights  as  owner. 

One  apparent  exception  to  this  general  principle  is  the 
following  : 
[409]         The  heir-at-law  is  the  proper  person  to  main- 
tain an  action  for  the  entire  damage  resulting  from 
a  nuisance  of  a  continuing  nature,  which  comes  into  his 
possession  by  descent,  {c) 

{b)  An  administrator,  nevertheless,  can  not  bring  detinue  against  a  person 
who,  having  got  goods  of  the  intestate's,  has  ceased  to  hold  them  prior  to  the 
grant  of  administration.    Crossfield  v.  Such,  8  Exch.  825  ;  22  L.  J.  325,  Ex. 

(c)  Penruddock's  Case,  5  Coke,  loi  a. ;  Some  v.  Baiwish,  Cro.  Jac.  231.  See 
Addison,  Torts,  3rd  ed.,  920.  As  to  joinder  of  plaintiffs,  see  atiU.  As  to  the 
right  of  action  for  a  tort  passing  to  the  survivor  of  several  persons  jointly  in 
jured,  see  ante. 


GENERAL     RULES.  429 


CHAPTER  XXV. 

DEFENDANTS GENERAL  RULES. 

Rule  96. — No  person  is  liable  to  be  sued  for  any 
injur}^  of  which  he  is  not  the  cause. 

No  one,  it  is  clear,  can  be  held  responsible  for  any- 
thing which  is  not  the  result  of  his  own  acts  or  omissions. 
But  the  conduct  of  X.  may  occasion  injury  to  A.,  and 
therefore,  in  one  sense,  be  the  cause  of  a  wrong  to  A., 
and  yet  X.  may  not  be  held  responsible  for  the  wrong, 
either  because  it  is  only  a  remote  consequence  of  X.'s 
conduct ;  or,  under  some  circumstances,  because  the 
damage  complained  of  is  due  in  part  to  what  is  termed 
the  contributory  negligence  of  A.  In  either  case  the 
ground  on  which  X.  is  exempt  from  liability  is  that  he  is 
not,  in  the  eye  of  the  law,  the  cause  of  the  grievance  com- 
plained of  by  A. 

Remoteness. — A  person  is  not  the  cause  of  or  liable  for 
the  remote  or  indirect  results  of  his  acts.  "  It  were  infi- 
nite for  the  law  to  consider  the  causes  of  causes,  and  their 
impulsions  one  of  another ;  therefore,  it  contenteth  itselt 
with,  the  immediate  cause,  and  judgeth  of  acts  by  that, 
without  looking  at  any  further  degree."  {a)  A  person, 
that  is  to  say,  is  responsible  only  for  the  natural  and 
proximate  consequences  of  his  acts,  and  not  for  remote 
consequences  not  clearly  connected  with  the  act  com- 
plained  of.  {b) 

(a)  Bacon,  Maxims.  Reg.  i.     See  Broom,  Maxims,  4th  ed.,  215. 

{b)  .See  Vicars  v.  Wilcocks,  8  East,  t  ;  2  Smith,  L.  C.  6th  ed.,  487  ;  Ward  v. 
Weeks,  7  Bing.  211  ;  Ashley  v.  Harrison,  i  Esp.  48  ;  Taylor  v.  Neri,  Id.  386  ; 
and  contra  for  cases  where  damage  was  not  too  remote  ;  Lumley  v.  Gye,  2  E.  & 
B.  216;  23  L.  J.  112,  Q.  B.  ;  R.  v.  Moone,  3  B.  &  A.  184;  R.  v,  Carlile,  6  C 
&  P.  636 


430  P.lRyV/iS     TO    ACTIONS. 

[411]  The  question  of  what  is  called  remoteness,  i.  e.^ 

whether  the  wrong  complained  of  can  be  connected 
with  the  conduct  of  the  defendant  closely  enough  to  make 
him  liable  for  it,  must,  it  is  manifest,  mainly  arise  when 
the  injury  complained  of  is  not  some  act  such  as  a  tres- 
pass, which  is  actionable  in  itself,  {c)  but  some  act,  e.  g., 
the  utterance  of  a  slander,  which  becomes  an  injury  on 
account  of  the  damage  which  it  causes ;  since,  in  such  a 
case,  it  is  necessary  to  show  that  the  damage  fairly  results 
from  the  conduct  of  the  defendant.  In  an  action,  for 
example,  for  slander,  the  damage  must  be  the  legal  and 
natural  result  of  the  words  spoken,  and  A.  can  not  sup- 
port an  action  for  slander  against  X.  on  account  of  a  mere 
wrongful  act,  such  as  a  breach  of  contract  by  M.,  wdiich 
was  prompted  b}',  or  resulted  from,  the  statement  uttered 
by  X.  {d)  Thus  again,  where  the  director  of  a  musical 
performance  sued  the  defendant  for  libeling  a  public 
singer,  whereb}'  she  was  prevented  from  performing  in 
public,  and  the  plaintiff  lost  his  profits,  the  damage  was 
held  to  be  too  remote  to  enable  him  to  sue.  {e) 

The  principle  that  a  person  is  not  liable  for  results 
which  do  not  flow  natuially  from  his  acts  must  be 
applied  with  great  caution.  The  expression,  indeed, 
"  remoteness  "  is  calculated  to  mislead,  since  a  man  may  be 
held  the  cause  of,  and  liable  for,  damage  which  may  be 
a  very  remote  consequence  of  his  conduct,  provided  there 
be  no  intermediate  cause  to  which  it  can  be  more  properly 
referred.  The  true  bearing  and  effect  of  the  principle 
under  consideration  is  most  easily  explained  in  reference 
to   the   rule,   that   any  pei'son  is  liable   to  be  sued  who 

causes  injury  to  another.  {/) 
[412]  Contributory   negligence,    (g) — A   person    is   not 

(r)  See  anU. 

(d)  Vicars  v.  Wilcocks,  2  Smith,  L.  C,  6th  ed.,  487  ;  I.ynch  v.  Knight,  9  H. 
L.  C.  577. 

{e)  A>hley  v.  Harrison,  i  Esp.  48  ;  Taylor  v.  Neri,  I  Esp.  386.  But  see 
Lualey  v.  Gye,  2  E.  &  B.  216  ;  23  L.  J.  462,  Q.  B. 

(/)  Rule  97. 

{,?•)  The  doctrine  of  contriljiUory  negligence  may,  perhaps,  be  in  strictness 
considered  a  result  of  the  principle,  that  a  person  is  not  liable  for  the  remote 
consequences  of  his  acts. 


GENERAL    RULES.  431 

liable  for  damage  caused  partly  through  his  negli- 
gence and  partly  through  the  negligence  of  the  party 
injured. 

X.,  through  his  negligent  driving,  runs  against  A.,  and 
breaks   A.'s   leg ;  A.,  however,  is  himself  driving  negli- 
gently, and   through  his    negligence  contributes    to  the 
calamity.     A.  can    not   recover   damages  from    X.,  nor, 
under  the  "supposed  circumstances,  had  X.  been  injured, 
could  he  have  recovered  damages  from  A.      "  The  rule 
of  law  is,  that  although  there  may  have  been  negligence 
on  the  part  of  the  plaintiff,  yet,  unless  he  might,  by  the 
exercise  of  ordinary  care,  have  avoided  the  consequences 
of  the  defendant's  negligence,  he  is  entitled  to  recover. 
If,  by  ordinary  care,  he  might  have  avoided  them,  he  is 
the   author   of  his   own    wrong."  {h)     "  The   question  is 
whether  the  damage  was  occasioned  entirely  by  the  neg 
ligence  or  improper  conduct  of  the  defendant,  or  whether 
the  plaintiff  so  far  contributed  to  the  misfortune  by  his 
own  negligence  and  want  of  care  or  caution,  that  but  for 
such  negligence  or  want  of  ordinary  care  on  his  part  the 
misfortune  would  not  have  happened.      In  the  first  case, 
the  plaintiff  would  be  entitled  to  recover,  in  the  latter  he 
would  not,  as  but  for  his  own  fault  the  misfortune  would 
not  have  happened.     Mere  negligence,  or  ordinary  want 
of  care  or  caution,  would  not  disentitle  him  to  recover, 
unless  it  were  such  that  but  for  that  negligence  and  want 
of  ordinary  care  and  caution    the  misfortune  could  not 
have  happened  ;  nor  if  the  defendant  might  by  the  exer- 
cise of  care  on  his  part  have  avoided  the  consequences  of 
the  neglect  or  carelessness  of  the  plaintiff."  (/)     The  con- 
tributory negligence  of  the  plaintiff  must,  in  order  to  tree 
the  defendant  from  liability,  distinctly  form  part  of 
the  cause  of  the  damage;  i.e.,  he   one  of  the   cir-    [41 3  J 
cumstances  without  which   it  could  not  have  been 
inflicted.  (Xr) 

(/;)  Davics  v.  Mann,  lo  M.  &  W.  549,  jicr  Parkk,  H. 
it)  Tuff  V.  Warman.  27  L.  J.  322,  C.  P.  (Kx.  Ch.).  jii'Ii^nicnt  of  Ex.  Ch. 
(k)  Greenland  v.  Chaplin,  19  L.  J.  293,  294,   Ex.,  judgment  of  Pollock 
C.  B. 


432  PARTIES     TO    AC'JIONS. 

The  contributory  neglij^cnce  or  wrong  of  a  third  party 
IS  no  defense ;  (/)  for  no  one  can  rid  himself  of  liability 
for  a  tort  merely  by  showino-  that  some  one  else  is  also 
liable,  {in)  i.  c,  if  the  negligence  of  X.  damages  A.,  he 
can  not  set  uji  in  answer  to  A.'s  claim  for  compensation, 
that  the  negligence  of  Y.  contributed  to  the  accident. 
Thus,  where  the  joint  negligence  of  two  persons  sepa- 
rately emplo3'ed  by  the  plaintiff  caused  an  explosion 
which  damaged  his  shop,  it  was  held  that  he  could  re- 
cover against  one  of  the  parties,  and  that  the  negligence 
of  the  other  could  not  be  a  defense  to  the  action,  (n)  "  If 
a  man  sustain  an  injury  from  the  separate  negligence  of 
two  persons,  employed  upon  his  premises  to  do  separate 
things,  .  .  .  as  in  this  case,  the  plaintiff  has  sustained 
an  injury  from  the  negligence  of  the  gas-fitters'  servant  on 
the  one  hand,  and  of  the  gas  company  on  the  other,  he 
can,  in  my  opinion,  maintain  an  action  against  both  or 
either  of  the  wrong-doers."  (o) 


Rule  97. — Any  person  who   causes  an  injury  to 
another  is  liable  to  be  sued  by  the  person  injured. 

Every  person  who  is  the  cause  of  an  injury  to  another's 
person,  reputation,  or  property  is  liable  to  an  action,  (/) 
and  no  one  is  liable  to  be  sued  for  any  wrong  of  which  he 
is  not  the'  cause,  (q)  In  determining,  therefore, 
[414]  whether  a  given  person  is  liable  to  be  sued  for 
a  wrong,  of  whatever  description,  the  point  to  be 
considered  is,  whether  he  be  or  not.  in  the  eye  of  the  law, 
the  cause  of  the  injury  complained  of,  to  the  person, 
reputation,  or  property  of  the  plaintiff. 

Injuries  to  person. — If  X.  assaults  or  imprisons  A.,  or 

(/)  Bullen,  Pleadings,  3rd  ed.,  753  ;  Harrison  v.  Great  Northern  Rail.  Co., 
3  H.  &  C.  231,  33  [..  J.  266,  Ex. 
(w)  See  Rule  98. 

(m)  Burrows  v.  March  Gas  Co.,  L.  R.  5,  Ex.  67. 
{0)  Ibid.,  71,  judgment  of  Kelly,  C.  B. 
(/)  Bacon,  Abr.,  Action,  B. 
(g)  Selwyn,  N.  P.,  13th  ed.,  42.     See  Rule  96. 


GENERAL    RULES.  433 

otherwise  directly  interferes  with  the  liberty  of  A.,  there 
can  be  (supposing  the  circumstances  of  the  case  are 
known)  little  or  no  difficulty  in  fixing  upon  X.  as  the 
cause  of,  and  therefore  liable  for,  the  wrong.  X.,  more- 
over, may  be  directly  liable  for  an  act  of  which,  in  one 
sense,  he  is  only  the  remote  cause.  X.  threw  a  squib  at 
M.,  who,  to  get  rid  of  it,  tossed  it  to  N.,  and  after  the 
squib  had  been  tossed  from  one  person  to  another,  it  at 
last  fell  upon  and  injured  A.  It  was  held,  (r)  that  A. 
could  sue  X.  in  trespass,  though  that  action  can  be 
brought  only  for  direct  injury,  for  the  "intermediate  acts 
of  [the  other  persons  did]  not  purge  the  immediate  tort 
in  the  defendant.  He  who  does  the  first  wrong  is  answer- 
able for  all  the  consequential  damages."  {s)  "  I  look," 
says  Grey,  C.  J.,  "  upon  all  that  was  done  subsequently 
to  the  original  throwing  as  a  continuation  of  the  first 
force  and  first  act,  which  will  continue  till  the  squib  was 
spent  by  bursting,  and  I  think  that  any  innocent  person 
removing  the  danger  from  himself  to  another  is  justifiable ; 
the  blame  lights  upon  the  first  thrower."  {f)  So  where 
the  defendant  had  a  quarrel  with  a  boy  in  the  street,  and 
pursued  him  with  a  pickaxe,  and  the  boy  ran  for  safety 
into  a  wine-shop,  and  upset  a  cask  of  wine,  it  was  held 
(by  an  American  court),  that  the  pursuer  of  the  boy  was 
responsible  in  damages  for  the  loss  of  the  wine,  {ti) 
Where,  however,  the  inj^jry  to  A.'s  person  arises  from  the 
negligence  of  X.,  the  question  may,  as  already  pointed 
out,  arise,  whether  A.'s  own  negligence  has  not 
contributed  to  the  result,  since,  if  it  has  done  so,  X.  [415] 
is  not  the  cause  of  the  damage  to  A.,  and  is  not  liable 
to  be  sued  for  it.  (x) 

Lnjiiries   to    character. —  i.    Libel. — Every    person    who 
publishes,  i.  e.,  makes  public,  a  libel,  may  be  sued.     The 

(r)  Scott  V.  Shcpherfl,  i  Smith,  L.  C,  6th  ed.,  417. 

{s)  Ibid.,  418,419,  judgment  of  Nares,  J. 

(/)  Ibid.,  423.  424,  judgment  of  DeGrey,  C.  J- 

(«)  Vandcnburgh  v.  Truax,  4  Denio,  (U.  .S.)  R.,  464. 

(x)  It  is  hardly  necessary  to  remark  that  the  defense  of  contributory  negli- 
gence may  arise  when  the  injury  is  one,  not  to  the  person,  but  to  the  property 
of  the  plaintiff.     As  to  false  imprisonment,  see  fiost. 
28 


434  PARTIES     TO    ACTIONS. 

person,  therefore,  who  makes  a  defamatory  statement,  and 
authorizes  its  publicatit)n  in  writing,  (j)  the  person  who 
writes,  the  publisher  who  brings  out  for  sale,  the  printer 
who  prints,  the  vendor  who  distributes,  a  libel,  are  each 
guilty  of  publication,  and  may  each  be  sued,  {z)  the  gist 
of  the  offense  being  the  making  public,  not  the  writing  of 
the  libel  ;  the  person  who  having  read  a  libel  sends  it  on 
to  a  friend,  is  a  libelor  ;  {a)  and  it  would  seem  that  a  per- 
son wdio  reads  aloud  a  libel,  knowing  it  to  be  such,  may 
be  sued,  {b) 

2.  Slander,  {c) — The  original  utterer,  and  the  repeater 
of  a  slander,  are  each  of  them  slanderers,  and  liable  to  be 
sued  for  the  slander,  {d) 

If  the  slander  consists  of  words  actionable  in  them- 
selves, as  where  X.  asserts  of  A.  that  he  has  committed 
a  murder,  X.,  who  originally  makes  the  assertion,  and  Y. 
who  repeats  it,  stand  exactly  in  the  same  position  as 
regards  liabilit}'^  to  be  sued.  They  have  each,  in  other 
words,  uttered  a  separate  slander,  for  which  they  are  each 
liable  to  an  action  ;  and  Y.  is  liable  even  should  he  have 
repeated  the  slander  merely  as  arumor.  {e)  If  the  slander 
consist  of  words  not  actionable  in  themselves,  but  action- 
able only  because  they  cause  damage  (as  where  X. 
[416]  says  of  A.  that  he  is  a  blackguard,  unfit  for  the 
society  of  gentlemen,  and  so  forth),  then,  indeed, 
each  person  who  utters  the  slander  and  causes  damage  by 
the  utterance  of  it  is  liable  to  an  action.  But  as  it  is 
essential,  in  order  to  fix  the  defendant  with  liability,  to 
show  that  the  slander  uttered  by  him  has  caused  damage 
to  the  plaintiff,  there  may  be  a  considerable  difference 
between  the  liability  of  the  utterer  and  of  the  repeater  of 
the  slander,  since  it  may  not  be  possible  to  connect  the 
damage  with  the  original  utterance  of  the  defamatory 
statement. 

(y)  Tarkes  v.  Prescott,  L.  R.  4,  Ex.  169  (Ex.  Ch.). 

(2)  Bacon,  Abr.,  Libel.  B.  i,  2. 

(a)  Coxhead  v.  Richards,  2  C.  B.  569  ;   15  L.  J.  278,  C.  P. 

{b)  Bacon,  Abr.,  Libel,  B.  I,  2. 

{c)  See  atite. 

(d )  Watkin  v.  Hall,  L.  R.  3,  Q.  B.  396. 

(e)  IbiJ. 


GENERAL     RULES.  435 

A  person  who  utters  or  repeats  a  slander  is  not  in 
general  to  be  considered  the  cause  of,  and  therefore  liable 
for  damage,  which  is  merely  the  result  of  its  further 
repetition  by  others.  "  Every  man  must  be  answerable 
for  the  necessary  consequences  of  his  own  wrongful  acts  ; 
but  ...  a  spontaneous  and  unauthorized  communica- 
tion can  not  be  considered  as  the  necessary  consequence 
of  the  original  uttering  of  the  words.  (/)  Where  one 
man  makes  a  statement  to  another,  who  repeats  it  to  a 
third,  I  do  not  think  it  reasonable  to  hold  the  first 
speaker  responsible  for  the  ultimate  consequences  of  his 
speech.  If  I  make  a  statement  to  a  man,  I  know  the 
consequences  of  making  it  to  him  when  I  make  it;  but 
if  I  do  not  desire,  and  do  not  authorize,  the  man  to  whom 
I  make  it  to  repeat  it,  but  he  does  it,  am  I  to  be  liable 
for  the  consequences  of  his  so  doing."  {g)  X.  said  to 
M.  that  A.  was  a  swindler.  Damage  ensued  to  A.  in 
consequence  of  the  repetition  of  these  words  by  M.  It 
was  held,  that  A.  could  not  sue  X.  (h)  An  action  was 
brought  by  A.  and  B.,  a  husband  and  wife,  against  X.,  and 
Y.,  his  wife.  The  words  declared  upon  were  addressed 
by  Y.  to  B.  in  the  presence  of  other  persons,  but 
in  the  absence  of  A.  They  were  repeated  without 
the  authority  of  Y.  b}^  B.  to  A.,  her  husband.  A.,  [417] 
in  consequence  of  the  imputation  contained  in  the 
slander,  refused  to  cohabit  with  B.  It  was  held,  that  the 
defendants  were  not  liable  for  the  unauthorized  repetition 
of  the  slander  by  B.  to  A.,  her  husband.  (/)  The  speaker 
(;f  a  defamatory  statement  is  not  answerable  for  damage 
caused  by  the  wrongful  or  illegal  act  of  a  third  party, 
though  this  act  may  be  committed  in  consequence  of  the 
slander.  If,  that  is  to  say,  X.  makes  a  slanderous  state- 
ment about  A.,  and  M.,  in  consequence,  assaults  A.,  or 
breaks  a  contract  he  has  entered  into  with  A.,  the  assault 
or  breach  of  contract  will  not  be  held  to  be  caused  by  the 

(/)  Ward  V.  Weeks,  7  Bing.  215,  per  Curiam  ;    Parkins  v.  Scott,  31   L.   J. 
334,  Ex.,  jiKljjment  of  Pollock,  C.  B. 

(  g)  Parkins  v.  Scott,  3 1  L.  J.  334,  Ex.,  jmlgmcnt  of  Bramwell,  B. 

(  h  )  Warfi  V.  Weeks,  7  Bing.  21 1. 

(i)  Parkins  v.  Scott,  I  H.  &  C.  153  ;  31  L.  J.  331,  Ex 


436  PARTIES     TO    ACTIONS. 

slander  uttered  by  X.  {k)  A  person  who  utters  a  slander 
is,  however,  in  many  cases  responsible  for  the  results  of 
It?  repetition  by  another.  He  is  so,  for  example,  "  if  the 
utterer  should  have  authorized  its  repetition."  (/) 

The  result  is,  that  though  the  utterer  and  the  repeater 
of  a  slanderous  statement  are  each  independently  liable  to 
be  sued,  yet  when,  fi)r  the  maintenance  of  an  action,  it 
is  requisite  to  prove  that  damage  was  caused  to  the  plain- 
tiff by  the  words  complained  of,  it  is  in  general  easier  to 
fix  the  repeater  than  the  utterer  of  the  slander  with  lia- 
bilitv  for  the  damage.  (;;/) 

Injuries  to  property. —  i.  Real  property,  or  lanel. — When 
the  act  complained  of  is  a  trespass,  {n)  there  can  in 
general   be  little   difficulty  in    determining   who   is  the 

wrong-doer,  {o^ 
[418]  When  the  wrong  complained  of  is  an  act  which 

is  injurious,  because  of  the  damage  caused  thereby, 
there  may  no  doubt  arise  a  question,  as  in  other  cases, 
whether  the  damage  was  caused  by  the  act  or  omission 
of  the  defendant.  He  may,  however,  be  responsible  for 
damage  for  which  he  would  not  generally  be  perhaps 
considered  the  immediate  cause.  X.  and  Y.,  the  defend- 
ants, who  were  drainage  commissioners,  were  empowered 
to  construct  a  cut  with  proper  walls,  &c.,  to  keep  out  the 
waters  of  a  tidal  river,  and  also  a  culvert  under  the  cut 
to  carry  off  the  drainage  from  the  lands  on  the  east,  to  the 
west  of  the  cut,  and  were  to  keep  the  same  at  all  times 
open.  In  consequence  of  the  negligent  construction  of 
the  gates,  &c.,  the  river  flowed  into  the  cut,  and  bursting 
its  western  bank,  flooded  the  adjoining  lands.  The 
plaintiff,  and  other  owners  of  land  on  the  east  side  of  the 
cut,  closed  the  lower  end  of  the  culvert,  and  prevented 

{k)  Taylor  v.  Neri,  r  Esp.  386 ;  Vicars  v.  Wilcocks,  2  Smith,  L.  C,  6ih  ed 
487,  489  ;  but  compare  Lynch  v.  Knight,  9  H.  L.   C.  577. 

{/)  Parkins  v.  Scott,  31  L.  J.  334,  Ex.,  per  Pollock,  C.  B. 

{m)  It  is  moreover  possible  that  one  of  the  parties  may  have  uttered  the 
slander  under  circumstances  which  made  it  a  privileged  communication,  whilst 
the  other  may  not  be  able  to  show  that  he  is  protected  by  any  privilege.  See 
Watkin  V.  HaU,  L.  R.  3,  Q.  B.  396  •  37  L.  J.  125,  Q.  B. 

{n)  See  ante. 

{0)  As  to  the  liability  of  all  persons  who  join  in  a  trespass,  see  Rule  91. 


GEXERAL    RULES.  437 

the  waters  from  overflowing  their  lands  to  any  consider- 
able extent ;  but  the  occupiers  of  the  land  on  the  west 
side  re-opened  it,  and  so  let  the  waters  through  on  to  the 
plaintiS"'s  land  to  a  much  greater  extent.  It  was  held 
that  the  commissioners  were  responsible  for  the  entire 
damage  thus  caused  to  the  plaintiff's  land,  (r) 

2.  Personal  property,  or  goods,  (s) — Any  person  who 
interferes  with  another's  right  to  the  possession  of  goods 
is  liable  to  an  action.  If  his  interference  does  not  amount 
to  a  deprivation  of  the  rightful  possessor's  possession  of 
the  goods  ;  if  it  is  a  mere  taking  of  the  goods  from  one 
place  to  another,  the  wrong-doer  is  guiltv  merely  of  a 
trespass.  (/)  If,  for  example,  a  man  who  has  no  right  to 
meddle  with  goods,  removes  them  from  one  place  to 
another,  an  action  may  be  maintained  against  him  for 
the  trespass :  but  he  is  not  guilty  of  a  conversion  of  them 
unless  he  removes  the  goods  for  the  purpose  of 
taking  them  away  from  the  plaintiff,  or  of  exercis-  [419] 
ing  some  dominion  or  control  over  them  for  the 
benefit  of  himself  or  sonie  other  person,  (u)  But  if  the 
wrong-doer  keeps  the  goods  of  another  person  out  of  his 
hands,  or  sells,  destroys,  or  pawns  them,  or,  in  short,  claims 
to  treat  them  in  any  way  inconsistent  with  that  other 
person's  right  to  immediate  possession,  he  is  guiltv  of  a 
conversion,  and  liable  to  an  action  of  trover  or  detinue,  (x) 

Trover,  (y) — As  a  conversion  is  an  act  actiortable  in 
itself,  there  is  no  need  to  consider,  in  determining  who 
ought  to  be  sued  for  it  whether  or  not  it  has  produced 
actual  damage.     But  two  points  require  notice. 

(r)  Cllir.-  V.  Mi  :  iltr  I>cvel  Commissioners.  L.  R.  4.  C.  P.  279.     See  further 
^~  'o  a    !c;.r,  Jair.',  i;  ..i.ty  for  a  nuisance,  />osl. 
••■  v. 
rrooghes  v.  Bajne,  29  L.  J.  1S7.  Ex.,  judgment  of  Martin,  B. 

-rd  ed..  309  ;    Falke  ▼.  Flcicher.  34  L.  J.  146.  C  P. ; 
M.Ac  W.  551. 

2   Wms.  Saund.  47  k.      The  gist  of  trover  is  the 

je  is  the  wrongful  detainer  of  goods ;   trover  is 

■  .  .VL  ..'.-  ......    _.  .-.      .,     i  .V      .     -is^  irheie=«  •■—    ■'    -' 

of  'U-;inue  is  to  r<.  .es.    The 

between  the  Two  <a-   ...  ...i,-...  -.-,  i..,i  ...i,..^; -  ..  i.^. ..-..  5  H.  &  N.  ^/^  ,  .^  ^. 

J.  'ss.  Kx  )  IS  of  little  importance  for  the  present  purpose. 
ijf)  Sec  anU. 


438  PAK'JVHS     TO    ACTIONS. 

1st.  It  may  be  hard  to  settle  whether  a  giv^en  act 
amounts  to  a  conversion,  /.  c,  to  a  denial  of  the  plaintiff's 
right  to  possess  the  goods.  A.  let  a  billiard-table  to  M., 
who  assigned  the  goods  in  his  house,  and  amongst  them 
the  billiard-table,  by  a  bill  of  sale  to  X.  X.  took  posses- 
sion, but  did  not  remove  the  table.  A.  demanded  the 
table.  X.  desired  to  see  the  writing  by  which  it  was  let 
to  M.  Some  negotiation  took  place  as  to  this,  and  ulti- 
mately X.'s  servant  would  not  give  up  the  table  to  A. 
when  A.  called  for  it,  though  X.  had  directed  him  to  do 
so.  The  table  was  afterwards  seized  by  M.'s  landlord  for 
rent,  and  A.  brought  an  action  of  trover  against  X.  (,3') 
The  majority  of  the  court  held,  that  there  was  evidence 
of  a  conversion  of  the  billiard-table  by  X.,  but  Bramwell, 
B.,  thought  that  there  was  not  "an  assertion  of  dominion 

inconsistent  with  the  title  of  the  plaintiff;  that  the 
[420]    whole  affair    was  matter  of  discussion    up    to   the 

time  the  plaintiff  was  informed  the  goods  were  at 
his  service,  and  that  so  far  as  the  defendant  was  concerned 
there  clearly  was  no  conversion."  (a)  X.,  a  wharfinger, 
held  wine  of  A.'s.  Under  a  mistaken  view  as  to  the  legal 
effect  of  an  attachment,  he  refused  to  give  up  the  wine  to 
A.  on  demand,  and  asked  for  time  for  inquiry.  A.  sued 
X.  in  trover.  The  majority  of  the  Court  of  Exchequer 
thought  that  there  was,  and  Bramwell,  B.,  that  there 
was  not,  a  conversion,  (d)  The  criterion  of  the  existence 
of  a  conversion  is  whether  the  wrong-doer  assumes  to 
himself  the  right  of  disposing  of  another's  goods.  But 
what  acts  amount  to  such  an  assumption  may  often  be  a 
matter  of  dispute,  and  acts  which  would  be  a  conversion 
if  done  by  one  person  need  not  be  so  if  done  by  another. 
Thus  if  X.  takes  and  sells  the  goods  of  A.,  or  keeps  them 
from  him,  A.  may  treat  him  as  a  wrong-doer  without  any 
request  to  return  the  goods  ;  but  "  it  is  a  common  learn- 
ing that  where  the  goods  come  into  the  defendant's  pos- 
session by  delivery  or  finding,  the  plaintiff  must  demand 

(2)  Burroughes  v.  Bayne,  5  H.  &  N.  296  ;  29  L.  J.  185,  Ex. 

(a)  Burroughes  v.  Bayne,  5  H.  &  X.  31 1,  judgment  of  Bramwfxl,  B. 

{6)  PiJlot  V.  Wilkinson,  32  L.  J.  201,  Ex.  ;  2  1 1  &  C.  72. 


GENERAL     RULES. 


439 


them,    and  the   defendant  refuse  to  deliver  thera  up,  in 
order  to  constitute  a  conversion,  {c) 

2ndly.  As  ever)'  one  who  interferes  with  another  man's 
right  to  the  possession  of  his  goods  is  guilty  of  conver- 
sion ;  and  as  no  man  can,  as  a  general  rule,  give  to 
another  a  better  title  to  goods  than  he  possesses  himself,  {d) 
a  series  of  persons  may  each  be  guilty  of  successive  acts 
of  conversion  o(  the  same  goods,  and  each  therefore  be 
liable  to  an  action  of  trover  by  the  owner.  X.,  for  exam- 
ple, takes  the  goods  of  A.,  and  Y.  takes  them  from  X. 
A.  can  sue  either  X.  or  Y.  So  if  X.  takes  and  sells  the 
goods  of  A.  to  Y.,  and  Y.  sells  them  to  Z.,  A.  may  sue  X., 
Y.,  or  Z.,  {e)  "  for  a  man  is  guilty  of  a  conversion 
who  takes  my  property  from  another  who  has  no  [421] 
authority  to  dispose  of  it,  for  what  is  that  but  assist- 
ing that  other  in  carrying  his  wrongful  act  into  effect."  (/) 
So,  again,  if  goods  are  bailed  to  one  man  and  he  wrong- 
fully sells  them  to  another,  {g)  an  action  lies  not  only 
against  the  bailee,  but  also  against  a  bona  fide  purchaser ; 
{h)  and  the  owner  can  sue  an  auctioneer,  [i)  or  a  pawn- 
broker, (/)  who  receives  goods  from  a  person  who  has  no 
title  to  them,  and  sells  them  or  refuses  to  give  them  up  to 
the  owner. 

Indirect  injuries. — Though  most  of  the  wrongs  referred 
to  in  this  chapter  have  been  acts,  such  as  tres'pass,  the 
publication  of  a  libel,  conversion,  &c.,  which  are  action- 
able in  themselves,  a  person  may,  it  should  be  remarked, 
be  injured  in  different  ways,  e.  g.,  as  well  in  person  as  in 
property,  by  acts,  such  as  negligence  or  fraud,  which  are 

(c)  Wilbraham  v.  Snow,  a  Wms.  Saund.  47  i.  So  an  act  wliich  would  be 
conversion  in  a  master  need  not  be  so  in  his  servant.     See  Chapter  XVI. 

(d )  See,  as  to  this  rule  and  the  exceptions  to  it,  Benjamin,  Sale,  4-16. 

(e)  Cooper  v.  Willomatt,  i  C.  B.  672  ;  14  L.  J.  2ig,  C.  P. 
(/)  McCombie  v.  Davies,  7  Ea'^t,  5. 

{g)  See,  as  to  the  question  how  far  a  sale  in  all  cases  determines  a  bailment 
attlf, 

(//)  Cooper  V.  Willornatt,  i  C.  IJ.  672  ;  14  L.  J.  2if),  C.  V.  ;  Ilardman  v 
Booth,  I  ri.  cSc  C.  803  ;  32  I,.  J.  105,  E.^. 

{/■)  Grimshaw  v.  Atwel;,  8  C.  Si  P.  6. 

( j)  Packer  v.  Gillies,  2  Camp,  336.  Compare  Donald  v.  Suckling,  L.  R.  i 
Q.  B.  585. 


440  PARTIES     TO    ACTIONS. 

actidiiable  only  because  of  the  damage  which  they  cause. 
Ill  considcrino;-  whether  a  given  person  can  be  sued,  the 
points  to  be  weighetl  arc,  first,  whether  the  damage  com- 
plained of  be  not  mere  damage  without  injury ;  {k)  and, 
secondly,  wiiether  the  defendant  be  so  connected  with  tiie 
damage  that  he  may  be  considered  its  cause. 

A  person  is  the  cause,  not  only  of  his  own  direct  acts 
and  of  the  wrongs  immediately  arising  from  them,  but 
also  of  wrongs  which  can  be  considered  to  be  ultimately, 
and  in  the  natural  course  of  things,  the  effect  of  his  con- 
duct. A  man,  therefore,  is  the  cause  of  injuries  arising 
from  the  mode  in  which  he  uses  land  or  goods 
[422]  Hence  a  person's  liability  for  nuisances  maintained 
on  land,  or  for  damage  inflicted  on  others  by  hi? 
goods. 

Nuisance  on  land. — Every  person  who  creates  or  con- 
tinues a  nuisance,  causes  it,  and  is  therefore  liable  to  be 
sued  by  any  person  specially  injured  thereby,  (/) 

The  person  who  creates  a  nuisance  is  liable,  even 
though  the  land  on  which  he  created  it  does  not  belong 
to  him,  and  he  could  not  remove  the  nuisance  without  a 
trespass,  {in)  The  defendants,  X.  and  Y.,  erected  a  build- 
ing on  land  which  was  not  their  own,  but  that  of  the  cor- 
poration of  K ,  of  which  they   were  members.     The 

building  was  a  nuisance  to  A.'s  market,  by  excluding  the 
public  from  part  of  the  space  on  which  the  market  was 
lawfully  held.  It  was  decided  that  A.  might  maintain  an 
action  for  the  continuing  nuisance  against  X.  and  Y.  "  It 
was  argued,"  said  the  court,  "that  the  plaintiff  might 
maintain  an  action  against  the  corporation  who  received 
the  rents  of  the  building,  or  the  tenants  who  occupy,  as 
appears  by  the  case  of  Ripon  v.  Bowles,  {n)  but  that  case 
shows  that  he  is  not  bound  to  pursue  that  remedy,  but 

(k)  Actions  for  fraud  and  actions  for  malicious  prosecution  afford  good 
examples  of  actions  for  indirect  injuries,  and  of  the  sort  of  questions  to  which 
such,  actions  gis'e  rise. 

(/)  2  Selwyn,  N.  P.,  I3ih  ed.,  1082-1084 ;  Addison,  Torts,  3rd  ed.,  159,  160  { 
Perruddock's  Case,  5  Coke,  loi  a. 

(w)  Thompson  v.  Gibson,  7  M.  &  W.  456. 

(«)  Cro.  Jac.  373. 


GENERAL     RULES.  441 

may  sue  the  original  wrong-doer.  It  was  also  said  that 
the  defendants  could  not  now  remove  the  nuisance  them- 
selves without  being  guilty  of  a  trespass  to  the  corpora- 
tion, and  that  it  would  be  hard  to  make  them  liable.  But 
that  is  a  consequence  of  their  own  original  wrong  :  and 
they  can  not  be  permitted  to  excuse  themselves  from  pay- 
ing damages  for  the  injur}^  it  causes,  by  showing  their 
inability  to  remove  it  without  exposing  themselves  to 
another  action."  {0) 

A  landlord  is  responsible  for  a  nuisance  of  a  permanent 
character  on  the  land  in  the  occupation  of  a  tenant  from 
year  to  year,  if  after  the  creation  of  the  nuisance,  and  before 
the  damage  caused,  he  might  have  put  an  end  to  the 
tenancy,  and  did  not,  the  ground  of  this  liability  [423] 
being  that  permission  to  the  same  tenant  to  remain 
in  possession,  is  analogous  to  a  re-letting  ;  and  it  is  no 
defense  that  the  landlord  had  no  knowledge  of  the  exist- 
ence of  the  nuisance.  (/)  Nor  does  the  length  of  the  ten- 
ancy seem  to  make  any  difference  in  the  landlord's  liabil- 
ity, provided  he  had  an  opportunity  of  putting  an  end  to 
it  after  the  creation  of  the  nuisance,  and  before  the  damage, 
{g)  for  the  cases  show  "  that  if  the  wrong  causing  the 
damage  arises  from  the  non-feasance  or  the  misfeasance 
of  the  lessor,  the  party  suffering  the  damage  from  the 
wrong  may  sue  him."  if)  The  principle  is,  that  a  party 
suffering  damage  from  a  nuisance  has  the  option  of  suing 
either  the  lessee  or  the  lessor,  {s) 

A  person,  further,  who  sells  his  interest  in  land,  after 
erecting  a  nuisance  on  it,  remains  liable  for  the  continu- 
ance of  the  nuisance,  and  can  not  relieve  himself  from 
liability   by  the  sale;  (/)   so,  also,  the  purchaser  of  land 

(o)  Thompson  v.  Gibson,  7  M.  &  W.  456,  462,  per  CURIAM. 

I  p)  Gandy  v.  Juhber,  33  L.  J.  151,  Q.  15.  ;  5  H.  &  S    78,  486. 

{</)  Todd  V.  Flight,  9  C.  B.,  N.  S..  377  ;  30  L.  J.  21,  C.  W  ;  2  Sclw)'n,  N. 
P.,  13th  ed.,  1083. 

{r)  Todd  V.  Flight,  30  L.  J.  24,  C.  I'.,  per  Curiam. 

(s)  ll)id.  ;  Payne  v.  Rogers,  2  II.  Bl.  350  ;  Rosewell  v.  Prior,  12  Mod.  396  ; 
R.  V.  Pedley,  i  A.  &  E.  824.  Sec.  however,  Saxhy  v.  Manchester  Rail.  Co.,  L. 
R.  4.  C.  P.  198. 

(/)  Rosewell  v.  Prior,  12  Mod.  396.  Compare  Penruddock's  Case,  5  Coke, 
lOl  a. 


442  PARTIES     TO    ACTIONS. 

with  a  nuisance  on  it,  is  liable  for  the  nuisance  after  a 
request  made  to  him  to  remove  it.  (//)  "  A  landowner 
who  creates  a  nuisance  upt)n  his  land,  or  purchases  land 
with  an  existing  nuisance  upon  it,  can  not,  by  granting  oi 
conveying  the  land  to  another,  get  rid  of  the  responsibility 
on  the  ground  that  he  has  no  longer  any  control  over  the 
nuisance.  Before  his  assignment  over,  he.  was  liable  for 
all  consequential  damages ;  and  it  is  not  in  his  power  to 
discharge  him3el*"  by  granting  it  over,  more  especially 
where  he  grants  it  over,  reserving  rent,  whereby 
[424]  he  agrees  with  the  grantee  that  the  nuisance  should 
continue,  and  has  the  rent  for  the  same."  {x) 

The  tenant,  again,  or  occupier,  who  creates  a  nuisance, 
or  suffers  it  to  remain,  is  responsible  for  it  to  the  persons 
injured  thereby,  {z) 

The  ground  of  liability  is  in  each  case  the  same,  viz., 
that  the  landlord,  tenant,  or  occupier  is  considered  the 
cause  of  the  nu'sance  ;  and  even  the  owner  of  land  is  not 
responsible  for  a  nuisance  thereon,  not  occasioned  by  his 
acts  or  omissions.  X.,  for  example,  lets  premises  to  Y., 
which  are  not  in  themselves  a  nuisance,  but  which  may 
be  used  by  the  tenant  so  as  to  become  so,  and  the  land- 
lord derives  the  same  benefit  from  them  in  whatever  way 
they  are  used  ;  X.  is  not  responsible  for  the  acts  of  the 
tenant,  {a)  In  a  case  of  this  sort,  where  the  plaintiff  was 
damaged  by  smoke  from  fires  lighted  by  the  tenant,  it 
was  said  by  the  Court : — "  It  appears  to  us  that  if  a  land- 
lord lets  premises,  not  in  themselves  a  nuisance,  but  which 
may  or  may  not  be  used  by  the  tenant  so  as  to  become  a 
nuisance,  and  it  is  entirely  at  the  option  of  the  tenant  so 
to  use  them  or  not,  and  the  landlord  receives  the  same 
benefit  whether  they  are  so  used  or  not,  the  landlord  can 
not  be  made  responsible  for  the  acts  of  the  tenant."  {b) 

(«)  Penniddock's  Case,  5  Coke,  lOi  a ;  Addison,  Torts,  3rd  ed.,  159. 

{x)  Rosewell  v.  Prior,  12  Mod.  396,  per  Curiam  ;  Thompson  v.  Gibson,  7 
M.  6c  W.  462.  cited,  Addison,  Torts,  3rd  ed,,  159,  160. 

(2)  Todd  V.  Flight,  9  C.  B.,  N.  S.,  377  ;  30  L.  J.  21,  C.  P.,  compared  with 
Saxby  v.  Manchester  Rail.  Co.,  L.  R.  4,  C.  P.  198. 

(a)  Rich  V.  Basterfield,  4  C.  B.  783  ;  16  L.  J.  273,  C.  P. 

{b)  Ibid.,  4  C.  B.  800,  801,  804,  806,  per  Curiam. 


GENERAL    RULES.  443 

X.  &  Y.  owned  the  soil  of  a  stream  which  supplied 
water  to  two  print-works.  M.,  w^hilst  occupier  of  both 
works,  erected  a  weir  across  the  stream,  and  thereby- 
diverted  the  water  from  one  of  the  works.  A.,  becominsf 
lessee  of  the  last-mentioned  work,  and  entitled  to  the 
water  of  the  stream,  removed  the  w^eir.  M.,  afterwards, 
and  without  any  authoritv  from  the  defendants,  and  against 
their  will,  replaced  it.  It  was  held,  that  X.  &  Y., 
though  owners  of  the  soil,  were  not  responsible  for  [425] 
the  continuance  of  the  nuisance,  {c) 

Damage  from  goods. — A  person  is  the  cause  of,  and 
therefore  liable  for,  injuries  to  others  arising  from  his 
goods  and  chattels  as  long  as  they  remain  under  his  con- 
trol, {d)  but  not  when  they  pass  out  of  his  control,  unless 
he  loses  control  of  them  by  his  fault,  {e)  Where,  there- 
fore, a  ship  is  sunk,  or  an  anchor  is  washed  away  by  the 
tide,  the  owners  are  not  bound  at  common  law  independ- 
ently of  special  statutor)'  provisions  to  remove  the 
wreck  or  anchor,  or  responsible  for  the  damage  caused 
by  them.  (/) 

An  owner  is  therefore  liable  for  injuries  done  by  his 
animals ;  for  by  keeping  an  animal,  known  to  be  danger- 
ous, he  causes  the  injury,  and  his  liability  depends,  not 
on  negligence,  but  on  the  fact  that  he  keeps  or  harbors 
an  animal  known  to  be  dangerous,  {g)  Knowledge  is 
essential ;  {h)  but  while  knowledge  may  be  assumed  in  the 
case  of  animals  of  a  fierce  nature,  it  must  be  proved  in 
animals  of  a  mild  nature,  e.  g.,  a  horse.  Thus,  wdiere  X. 
let  his  horse  stray  into  a  road,  and  A.,  a  child,  was  kicked 

(c)  Saxhy  v.  Manchester  Rail.  Co.,  L.  R.  4,  C.  P.  198,203,  204.  See,  further, 
as  to  the  general  li-.bility  of  the  owner  of  land  for  damage  caused  to  others  by 
the  u.se  of  it,  Fletcher  v.  Rylans,  L.  R.  r,  Ex.  265,  279;  Jones  v.  Festiniog  Rail. 
Co.,  L.  R.  3,  Q.  13.  736,  judgment  of  BLACKBURN,  J. 

(d)  Brown  v  Mallett,  5  C.  B.  599;  17  L.  J.  227,  C.  B. ;  R.  v.  Watts,  2 
Esp.  675. 

(e)  Hancoi:k  v.  York,  Newcastle,  and  Berwick  Rail.  Co.,  10  C.  B.  348. 
Compare  White  v.  Crisp,  11  Exch.  312  ;  23  L.  J.  317,  Ex. 

(/)  Brown  v.  Mallett,  5  C.  B.  599;  ^^  L.J.  227,  C.  P.;  R.  v.  Watt.s,  a 
Esp.  675  :   Bartlett  v.  Baker,  3  \l.  &  C.  152  ;  34  L.  J.  8,  Ex. 

(.^)  Rylarids  v.  Fletcher,  L.  R.  3.  H.  L.  830;  Judge  v.  Cox,  I  Stark,  285  ; 
May  V.  Burdelt.  9  Q.  B.  loi  ;  16  L.  J.  64.  Q.  B. 

(h)  Cox  V.  Burbidge,  13  C.  B.,  N.  S.,  830  ;  32  L.  J.  89.  C.  P. 


444  PARTIES     TO    ACTIONS. 

and  injured  by  it,  it  was  held  that  A.  could  not  sue  X. 
*'  The  owner  of  a  horse  is  bound  to  know,  and  must  be  in 
all  cases  taken  to  know,  tiiat  a  horse  is  by  nature  likely  to 
stray  il  not  carefully  confined,  and  to  walk  into  a  pasture 

and  consume  the  grass.  For  this,  therefore,  the 
[426]    owner  is  held  to  be  liable.     But  if  a  horse  does  an 

act  which  is  not  in  the  ordinary  course  of  the 
nature  of  a  horse  to  do,  and  which  no  owner  would, 
therefore,  without  knowing  his  peculiar  vicious  nature, 
have  any  reason  to  calculate  on  his  doing,  then  he  has 
the  same  protection  as  the  owner  of  a  dog.  It  is  not  in 
the  ordinary  course  of  the  nature  of  a  horse  to  kick  a 
child,  and,  therefore,  the  owner  is  not  liable,  unless  he  is 
proved  to  be  aware  that  the  horse  had  a  tendency  to  acts 
of  that  kind."  (0 

But  though,  where  the  gist  of  the  action  is  the  damage 
caused  by  animals  kept  or  harbored  by  the  defendant,  it 
is  necessar}^  to  show  the  ferocious  character  of  the  animal, 
and  that  it  was  known  to  the  defendant,  still  an  owner  is, 
as  a  general  rule,  responsible  for  trespasses  committed  by 
his  animals,  e.  g.,  horses  or  oxen,  whatever  their  charac- 
ter. In  other  words,  a  trespass  is  an  act  actionable  in 
itself,  and  the  owner  who  keeps  animals  which  trespass 
is  looked  upon  as  committing  the  trespass  himself.  X.'s 
horse,  through  the  defect  of  a  gate  which  X.  was  bound 
to  repair,  got  out  of  his  farm  and  strayed  into  A.'s  field, 
and  there  kicked  and  injured  A.'s  horse  ;  it  was  held,  that 
X.  was  liable  for  the  trespass  by  his  horse,  and  that  it  was 
not  necessary  to  prove  that  the  horse  was  vicious,  and 
that  the  plaintiff  knew  of  it.  (/)  Yet  an  owner,  though 
liable  for  every  trespass  committed  by  his  horses,  oxen, 
&c.,  is  probably  not  liable  for  trespasses  committed  by 
animals,  such  as  dogs  or  cats,  naturally  given  to  wander. 
"  The  question  was  much  argued  "  in  a  particular  case, 
{m)  "  whether  the  owner  of  a  dog  is  answerable  in  tres- 

(f)  Cox  V.  Burbidge,  32  L.  J.  90,  91,  C.  P., judgment  of  Erle,  C.  J.;  and 
Bee  Ibid.,  92,  judgment  of  Keating,  J. 

(/)  Lee  V.  Riley,  34  L.  J.  212,  C.  P. ;  18  C.  B.,  N.  S.,  722  ;  Cox  v.  Burbidge, 
32  L.  J.  89.  C.  P.  ;  Powell  v.  Salisbury,  2  Y.  &  J.  391. 

{m)  Reed  v.  Edwards.  17  C   B.,  N.  S.,  245  ;  34  L.  J.  31,  C.  P. 


GENERAL    RULES. 


445 


pass  for  every  unauthorized  entry  of  the  animal  nito  the 
land  of  another  as   [he]   is    [in]  the  case  of  an  ox,  and 
reasons  were  offered   .     .     .   for  a  distinction  in  this 
respect  between  oxen  and  dogs  or  cats,  on  account   [427] 
of,  first,  the  difficulty  or  impossibility  of  keeping  the 
latter  under  restraint ;  and  secondly,  the  slightness  of  the 
damage  which  their  wandering  ordinarily  causes  ;  thirdl}- 
the  common  usage  of  mankind  to  allow  them  a  wider 
liberty  ;  and,  lastly,  their  not  being  considered  in  law  as 
absolutely  being  the  chattels  of  the  owner  so  as  to  be  the 
subject  of  larceny."  {g)     The  true  reason  for  this  exemp- 
tion from  liability  is,  it  would  seem,  the  last.     The  owner, 
not  being  in  a  strict  sense  the  possessor  of  such  animals, 
he  is  not  looked  upon  as  liable  for,  or  as  the  cause  of  their 
acts. 

Exception — Where  persons  are  protected  from  actions. 

Certain  persons  are  in  different  degrees  protected  b}' 
their  positions  from  an  action  for  tort. 

Judges. — A  judge  can  not  be  sued  {r)  for  a  malicious 
act,  even  though  done  maliciously  and  corruptly. 

This  exemption  extends  to  the  judge  of  a  county  court, 
and  where  such  a  judge  was  sued  for  slanderous  words 
spoken  by  him  during  the  trial  of  a  cause,  falsely  and 
maliciously,  and  without  reasonable  and  probable  cause, 
and  not  bona  fide  in  the  discharge  of  his  duty,  it  was  held 
that  no  action  would  lie  ;  {s)  "  for  though  the  question 
[arose]  perhaps  for  the  first  time  with  reference  to  -a 
county  court  judge,  a  series  of  decisions,  uniformly  to  the 
same  effect,  extending  from  the  time  of  Lord  COKE  to  the 
present  time,  establish  the  general  proposition  that  no 
action  will  lie  against  a  judge  for  any  acts  done  or  words 

{q)  Reed  v.  Edwards.  34  L.  J.  34,  C.  P.,  per  CURIAM.  Compare  28  &  2g 
Vict.  c.  60,  as  to  injuries  done  to  cattle  by  dogs  ;  under  which  Act  it  is  not 
necessary  to  prove, —  1,  a  previous  mischievous  propensity  in  the  dog;  2,  the 
knowledge  thereof  by  the  owner  ;  3,  the  ncj,digence  of  the  owner. 

(r)  Kemp  v.  Neville.  10  C.  li..  N.  S.,  523  ;  31  L.  J  158,  C.  P.,  esp.  10  C.  B, 
N.  S..  549-551. 

(i)  Scott  V.  Stansficld,  L.  R.  3,  Ex.  220. 


446  PARTIES     TO    ACTIONS. 

spoken  in  his  jiulicial  capacity  in  a  court  of  justice.     This 
doctrine  has  been  applied,  not  only  to  the  superior  courts, 

but  to  the  couitt)f  a  coroner,  and  to  a  court-martial, 
[42SJ    which  is  not  a  court  of  record.     It  is  essential  in 

all  courts  that  the  judges  who  are  appointed  to 
administer  law  should  be  permitted  to  administer  it  under 
the  protection  of  the  law,  independently  and  freely,  with- 
out favour  and  without  fear."  (/)  There  does  not  seem  to 
be  in  theory  much,  if  any,  distinction  between  the  pro- 
tection extended  to  a  judge  of  the  superior  courts  and 
that  given  to  a  judge  or  judicial  officer  of  an  inferior  court 
such  as  a  county  court  judge,  {u)  the  chancellor  of  the 
luiiversities,  {x)  coroners,  {y)  returning  officers,  {z)  magis- 
trates, (a)  &c.  For  though  no  judge  or  person  acting 
judicially  can  be  sued  for  any  adjudication  according  to 
the  best  of  his  judgment,  in  a  matter  within  his  jurisdic- 
tion, ib)  even  though  he  act  maliciously,  {c)  any  judge  may 
be  sued  for  an  act  not  done  in  his  judicial  character.  The 
only  question  is,  whether  the  judge  of  a  superior  court  is 
liable  to  an  action  for  judicial  proceedings  beyond  the 
scope  of  his  jurisdiction,  {d) 

The  judge  of  an  inferior  court  is  certainly  liable  to  be 
sued  for  acts  not  within  his  jurisdiction,  {e)  provided  that 
he  knew,  or  had  the  means  of  knowing,  that  they  were  not  so. 
(/)  "  The  Privy  Council  say  that  trespass  will  not  lie  for  a 
judicial  act  without  jurisdiction,  unless,  the  judge  had  the 

means  of  knowing  the  defect  of  jurisdiction,  and  it 
[429]    lies  on    the   plaintiff  in   every   case  to   prove  that 

(/)  Scott  V.  Stansfield,  L.  R.  3,  Ex.  222,  223,  judgment  of  Kelly,  C  B. 
Compare  Daw  kins  v.  Paulet,  L.   R.  5,  Q.  B.  94. 

(m)  Scott  V.  Stan>field,  L.  R.  3,  Ex.  220. 

(x)  Kemp  V.  Neville,  lo  C.  B.,  N.  S.,  523  ;  31  L.  J.  158.  C.  P. 

(;')  Garnett  v.  Ferrand,  6  B  &  C.  615. 

(0)  Tozer  V.  Child,  7  E.  &  B.  377  ;  27  L.  J.  151,  Q.  B.  (Ex.  Ch.). 

{a )  Calder  v.  Halkett,  3  Moo.  P.  C.  28  ;  Gelen  v.  Hall,  2  H.  &  N.  379 ;  27 
L.  J.  78,  M.  C. 

(b)  Kemp  v.  Neville,  10  C.  B.,  N.  S..  523;  31  L.  J.  158,  C.  P. 

{c)  Scott  V.  Stansfield,  L.  R.  3  Ex.  220. 

(d)  Taafe  v.  Downs,  3  Moo.  P.  C.  36,  n.,  where  a  distinction  is  drawn 
between  the  judges  of  superior  and  inferior  courts. 

{e)  Houlden  v.  Smith,  14  Q.  B.  841  ;  Pease  v.  Chaytor,  32  L,  J.  I2r,  M.  C.J 
3  B.  &  S.  620. 

if)  See  note  {/),  next  page. 


GENERAL    RULES.  447 

fact.  (/)  In  Houlden  v.  Smith,  the  judge  of  the 
county  court  was  held  liable  in  trespass,  because  he  was 
within  the  exception  thus  laid  down,  and  had  the  means 
nf  knowing  that  he  had  no  jurisdiction."  {g)  Though  the 
decision  of  a  judicial  officer  upon  a  matter  of  fact  within 
his  jurisdiction  can  not  be  put  in  issue  in  an  action  against 
him,  (//)  yet  he  can  not  give  himself  jurisdiction  by  a 
decision  with  regard  to  the  facts  on  which  the  jurisdiction 
depends,  {i) 

Magistrates,  constables,  6-^.— Magistrates,  constables, 
cS:c.,  are  to  a  great  extent  protected. 

A  magistrate,  for  example,  can  not  be  sued  for  an)'- 
thing  done  within  his  jurisdiction,  unless  it  be  alleged 
that  the  act  was  done  without  reasonable  and  probable 
cause,  {k)  And  though  an  action  can  be  brought  for  acts 
done  without  or  in  excess  of  jurisdiction  without  alleging 
malice  or  want  of  reasonable  or  probable  cause,  yet  in 
this  case,  too,  no  action  can  be  brought  until  the  convic- 
tion or  order  has  been  quashed,  (/)  and,  further,  where  a 
magistrate  is  sued  in  respect  of  anything  done^n  execu- 
tion of  his  office,  he  has  special  privileges  with  respect  to 
the  time  within  which  the  action  must  be  brought,  notice 
of  action,  venue,  <S:c. 

Constables  and  police-officers  are  also  to  some  extent 
protected  persons,  since,  for  example,  a  constable,  head- 
borough,  or  other  officer,  or  any  person  acting  by  his 
order  or  in  his  aid,  is  protected  when  acting  in  obedience 
to  a  warrant.  He  can  not  be  sued  without  demand 
of  a  copy  and  perusal  of  the  warrant,  nor  can  he  be  [430] 
sued  when  once  such  demand  has  been  complied 
with.  («) 

(/)  See  Calder  v.  Ilalkett,  3  Moo.  P.  C.  2S  ;  and  contrast  Houlden  v. 
Smith,  14  Q.  B.  841.  It  is  not  absolutely  decided  on  which  side  lies  the  bur- 
den of' proving  that  a  judicial  officer  has  acted  without  jurisdiction.  Compare 
Garrett  v.  Morley,  I  Q.  B.  18.  with  Calder  v.  Ilalkett,  3  Moo.  P.  C.  28. 

{g)  Kemp  V.Neville,  10  C.  B.,  N.  S.,  551  per  Curiam. 

(//)  Ibid.,  !0  C.    B.,  N.  S.,  523  ;  31  L.  J.  158.  C.  P.  ;  Mould  v.  Williams.  5 

Q.  P..  4^'9- 

[i)  Mould  V.  Williams,  5  Q.  B.  469. 

\k)  II  &  12  Vict.  c.  44,  s.  I. 

(/)  Ibid.,  s.  2. 

(/;)  24  Geo.  II.  c.  44.  s.  6;    Atkins  v.    Kill)y,  11    A.  &   E.  777;    Cl-nrk  v. 


448  PARTIES     TO    ACTIONS. 

Persons  arc  also  often  to  some  extent  protected  either 
because  thev  bcloni^  to  particular  classes  or  have  done 
the  acts  complained  of  whilst  acting  under  or  in  pursa- 
ance  of  particular  statutes.  Such  persons  may,  indeed, 
be  sued,  but  they  arc  entitled  to  privileges,  of  which  the 
most  ordinary  are  a  month's  notice  of  action,  freedom 
from  liability  to  be  sued  after  the  lapse  of  a  short  time 
from  the  date  of  the  act  complained  of,  the  right  to  defend 
themselves  by  tendering  compensation,  and  so  forth. 
Thus,  for  example,  the  Metropolitan  Board  of  Works  are 
entitled  to  one  month's  notice  of  action  against  them ;  so 
are  persons  acting  in  pursuance  of,  e.  g.,  the  Coining  Act, 
{o)  the  Hackney  Coach  Act,  (/)  the  Juvenile  Offenders' 
Act,  {q)  the  Larceny  Act,  {r)  the  Contagious  Diseases 
(Animals)  Act,  {s)  and  many  other  statutes  which  it  is  not 
within  the  scope  of  the  present  work  to  enumerate  ;  and 
when  the  wrong  done  by  the  defendant  is  an  act  done  or 
intended  to  be  done  under  or  by  virtue  of  the  powers  of 
any  statute,  the  wrong-doer  is  often  at  least  so  far  pro- 
tected as  to  be  entitled  to  notice  of  action  and  other  like 
privileges. 


Rule  98. — One,   or  any,   or   all    of  several  joint 
wrong-doers  may  be  sued. 

Every  person  who  joins  in  committing  a  tort  is  sepa- 
rately liable  for  it,  and  can  not  escape  liability  by 
[431]  showing  that  another  person  is  liable  also,  nor 
can  one  of  several  wrong-doers  compel  the  plaintift 
to  sue  him  together  with  the  persons  with  whom  he  has 
joined  in  committing  the  wrong.  X.,  Y.,  and  Z.,  for 
example,  join  in  assaulting  A. ;  A.   may  sue  either  all  oi 

Woods,  2  Exch.  395  ;    17  L.  J.  i8g,  M.  C.     See  as  to  officers  of  county  courts, 
19  &  20  Vict.  c.  108,  s.  5o. 

{o)  24  &  25  Vict.  c.  99,  s.  33. 

{p)  I  &  2  Will.  IV.  c.  22,  s.  73. 

(q)  10  &  II  Vict.  c.  82,  s.  17. 

(r)  24  &  25  Vict.  c.  96,  s.  113. 

(x)  30  &  31  Vict.  c.  155,  s.  57. 


GENERAL     RULES.  449 

them  or  any  two  of  them,  e.  g.,  X.  and  Y.,  or  any  one  of 
them,  e.  g.,  X. 

If,  further,  A.  sues  X.  alone,  X.  can  not  take  any  steps 
to  compel  him  to  make  Y.  or  Z.  co-defendants ;  and  X., 
if  found  guilty,  will  have  to  pay  compensation,  not  for  a 
:hird,  but  for  the  whole,  of  the  damage  done  to  A. ;  and 
when  X.  has  paid  the  whole  of  the  damages,  he  can  not 
::ompel  Y.  and  Z.  to  repay  him  any  part  of  what  he 
has  been  compelled  to  pay ;  for  it  is  a  maxim  of  law 
that  there  is  no  right  of  contribution  between  wrong- 
doers. (/) 

There  does  not  exist,  in  short,  any  joint  liability  for  a 
wrong  in  the  sense  in  Avhich  there  exists  a  joint  liability 
for  a  breach  of  contract,  and  the  position  of  joint  wrong- 
doers is  most  clearh-  seen  by  a  comparison  with  that  of 
co-contractors.  Suppose  that  X.,  Y.,  and  Z.  are  co-con- 
tractors, and  break  their  contract  with  A.  ;  A.  is,  prop- 
erly speaking,  bound  to  sue  them  jointly.  He  may, 
indeed,  sue,  e.  g.,  X.  alone,  but  X.  can  in  general  [ii)  com- 
pel him  to  m?ke  Y.  and  Z.  co-defendants.  If,  however, 
X.  can  not  do  this,  he  has  to  pay  the  whole  of  the  damages 
for  the  breach  of  contract,  but  he  has  a  right  to  sue  each 
of  his  co-contractors  for  a  third  of  the  amount  which  he 
has  been  compelled  to  pay. 

Tort  must  be  joint. — Where  an  action  is  brought  against 
several  co-defendants  it  is  essential  that  the  wrong  com- 
jDlained  of  be  joint.  If,  for  example,  A.  sues  X.,  Y.,  and 
Z.  in  trover,  he  must  prove  a  joint  act  of  conversion 
against  all  of  them,  and  if  he  proves  separate  acts  of  con- 
version he  must  take  a  verdict  against  those  defendants 
alone  who  were  parties,  and  the  other  defend- 
ants must  be  found  not  guilty.  (7)  Where,  there-  [432] 
fore,  trover  lies  against  a  succession  of  wrong- 
doers, as  where  X.  takes  A.'s  goods  and  sells  them  to  Y., 
who  re-sells  them  to  Z.,  who  refuses  to  give  them   up  to 


(t)  Menyweather  v.  Nixan,  2  Smith,  L.  C,  6th  cd.,  481. 
(«)  See  aftle. 

(y)  Coryton  v.    Lithebye,  2  Wms.  Saund.  117  c,  note  (,^);     Wilbraham  T. 
Snow,  Ibid.,  47  u,  note  ( »'). 
2U 


450  PARTIES     TO    ACTIONS. 

A.,  the  successive  wrong-doers  can  not  be  sued  together, 
because  they  are  each  guilty  of  a  dilTerent  act  of  conver- 
sion, /.  r.,  of  a  different  tort,  {z)  Therefore,  when  bank- 
rupts and  their  assignees  were  joined  as  defendants  in  an 
action  of  trover,  and  a  verdict  passed  against  all  the 
defendants  upcMi  evidence  that  the  bankrupts,  before  their 
bankruptcy,  had  converted  the  goods  of  the  plaintiff  by 
pledging  them  without  authority,  and  that  the  assignees, 
after  the  bankruptcv,  had  refused  to  deliver  them  up  on 
demand,  the  court  held  that  the  conversions  were  separ- 
ate, and  granted  a  new  trial  for  want  of  evidence  of  a 
joint  conversion,  {a) 

I.  IVhat  turongs  can  be  Joint. — The  great  majority  of 
wrongs  can  be  committed  by  two  or  more  persons  jointly, 
and  further,  all  persons  who  aid,  counsel,  direct,  or  join 
in  a  trespass  can  be  sued  together,  {b)  Hence,  every  one 
who  takes  part  in  a  trespass,  e.  g.,  X.,  at  whose  command 
Y.  trespasses  on  A.'s  land,  and  Z.,  who  joins  with  Y.  in 
trespassing,  can  all  be  sued  as  joint  wrong-doers.  And 
in  substance  the  same  principle  applies,  it  is  conceived, 
to  torts  which  do  not  come  under  the  head  of  trespass. 
If,  for  example,  Y.,  at  the  command  of  X.,  converts  the 
goods  of  A.,  both  X.  and  Y.  are  guilty  of  conversion,  and 
can  be  sued  as  for  a  joint  act  of  conversion,  {c) 

The  application  of  the  principle  that  all  persons  who 
take  part  in  a  trespass  are  jointly  liable  may  be  illustrated 
by  examining  who  are  the  persons  liable  to  be  sued   for  a 

special  kind  of  trespass,  viz. : 

[433]  Trespass  under  color  of  legal  proceedings,  or  false 

imprisonment,  {d) — Every  person  who  interferes  with 

the  liberty  or  property  of  another  is  prima  facie  a  trespasser, 

and  is  liable  to  an  action  unless  he  can  show  legal  justifi- 

(z)  Wilbraham  v.  Snow,  2  Wms.  Saund.,  47  u,  note  (?). 

(a)  See  NicoU  v.  Glennie,  i  M.  &  S.  588. 

{b)  Petrie  v.  Lamont,  I  Car.  &  M.  96. 

(c)  Wilbraham  v.  Snow,  2  Wms.  Saund.  47  x. 

{d)  This  tort  requires  special  notice,  from  the  fact  that  a  large  number  oi 
persons  are  often  prima  facie  liable  to  an  action  for  it,  and  it  requires  some  care 
to  perceive  which  of  them  can  be  sued  with  success.  This  trespass  need  not 
necessarily  amount  to  false  imprisonment,  for  it  may  be  simply  a  trespass  to  the 
plaintiff's  goods,  e.g.,  where  they  are  wrongfully  taken  in  execution. 


GENERAL     RULES.  451 

cation  for  his  act.  When,  therefore,  a  trespass  is  com- 
mitted under  color  of  legal  proceedings,  e.  g.,  when  A.  is 
wrongfully  arrested  on  a  writ  of  ca.  sa.,  or  his  goods  are 
wrongfully  taken  in  execution,  some  one  or  more,  and  it 
may  be  all,  of  the  following  persons  must  be  guilty  of  a 
trespass,  viz.,  the  plaintiff  in  the  original  action,  his  attor- 
ney (who  sued  out  the  writ),  the  sheriff,  and  the  sheriffs 
officers.  Some  of  these  persons  must  be  liable ;  other- 
wise there  can  have  been  no  error,  and  no  trespass  has 
been  committed,  and  if  none  of  them  have  any  justification 
they  may  all  be  sued  together.  But  though  some  of  these 
persons  must  be  liable,  they  are  not  generally  all  liable, 
for  some  of  them  are,  in  most  cases,  legally  justified  in  the 
acts  they  have  committed.  Which  are  liable  and  which 
are  not  depends  upon  the  stage  of  the  proceedings  at 
which  the  error  in  the  process  arises. 

Error  in  foundation  of  process. — The  proceedings  may 
be  erroneous  ab  initio,  as  where  a  writ  is  issued  on  a 
judgment  more  than  a  year  old  without  a  sci.  fa.  {e)  The 
writ  in  this  case  ought  not  to  have  been  issued  at  all. 
The  attorney,  therefore,  who  sued  out  the  writ  and  the 
plaintiff  in  the  original  action  who  employed  him  are  both 
liable  as  trespassers.  (/) 

The  attorney  is  liable  as  being  the  person  who 
issues  the  writ,  the  plaintiff  as  being  the  attorney's  [434] 
employer,  '*  <=ince  it  has  always  been  held  that  a 
man  is  liable  for  the  acts  of  his  attorney  in  the  conduct  of 
a  suit  at,  law  brought  under  his  authority.  He  gives  to 
the  attoinev  the  right  to  represent  him,  and  for  whatever 
the  attorney  does  he  is  responsible."  If  the  writ  is  only 
voidable,  as  where  it  is  issued  on  an  execution  more  than 
a  year  old  without  a  sci.  fa.,  the  plaintiff  and  his  attorney 
can  not  be  sued  until  the  writ  is  set  aside,  {g)  But  if  it  is 
void  they  can  be  sued  before  it  is  set  aside,  {h) 

(e)  RifMcll  V.  raktman,  2  C.  M.  &  R.  33  ;   I'.lanclienay  v.  Burt.  4  Q.  R.  707. 

(/)  Hrooks  V.  IIo(it;kinson,  4  H.  &  N.  712  ;  29  L.  J.  93,  Ex.  ;  Coclriiifion 
V.  Lloyd,  8  A.  &  E.  449  ;  B.-irker  v.  Uraham,  3  Wils.  396. 

( -;  rollctt  V.  Foster,  2  H.  &  N.  356  ;  26  L.  J.  412,  Ex.  ;  Esp.  414.  judgment 
of  Pollock,  C.  B. 

(Aj  Blanchcnay  v.  Burt,  4  Q.  B.  707. 


452  PARTIES     TO    ACTIONS. 

The  sheriff  and  his  officers  can  not  be  sued.  The 
reason  of  this  is  that  all  the  sheriff  and  his  officers  need 
do  is  to  k:>ok  to  the  writ,  which  is  the  order  of  the  court 
to  them,  and  see  whctlier  it  justifies  their  proceedings. 
If  it  docs,  the  writ  itscU'  can  be  pleaded  in  defense  of  their 
acts  under  it.  (/)  It  will  not,  however,  justify  the  sheriff, 
if  the  court  which  issues  it  has  no  jurisdiction,  {k) 

Process  irregular  in  form. — The  plaintiffs  in  the  original 
action  may  have  a  right  to  issue  a  writ;  but  the  writ 
issued  may  be  irregular  because  of  a  defect  in  its  form. 

The  attorney  and  his  client  are  liable.  The  sheriff  and 
his  officer  are  prima  facie  not  liable.  (/)  But  if  the  irreg- 
ularity is  enough  to  make  the  writ  void,  the  client,  attor- 
ney, and  sheriff  are  all  liable,  {i)i)  but  the  officer  is  certainly 
not  liable  unless  the  writ  is  bad  on  its  face. 

Error  in  execution. — The  writ  may  be  rightly  issued 
and  be  regular  in  form,  and  yet  a  mistake  may  be 
[43 5 J  made  in  executing  it.  The  sheriff  and  his  officers 
are  in  this  case  liable.  "  There  is  no  doubt  that  the 
sheriff  is  liable  for  all  acts  done,  and  neglects  of  duty,  by 
the  bailiff  in  the  execution  of  a  writ,  on  the  ground  that 
if  the  sheriff  thinks  fit  to  commit  the  execution  of  a  writ, 
which  he  is  bound  to  execute,  to  another,  he  is  responsi- 
ble if  that  person  does  not  execute  it  properly,  and  is  in 
the  same  condition  as  if  he  had  executed  it  himself,  (;/) 
the  case  of  a  sheriff  differing  in  this  respect  from  the 
liability  of  an  ordinary  principal  for  the  acts  of  an  agent 
who  does  not  pursue  the  authority  committed  to  him. 
Therefore,  if  a  sheriff's  officer  arrests  a  wrong  person,  or 


{i)  Barker  v.  Braham,  3  Wils.  376  ;  Countess  of  Rutland's  Case,  6  Coke, 
54  a. 

{k)  Case  of  The  Marshalsea,  10  Coke,  69.  The  sheriff  is  bound  to  know 
whether  the  Court  has  jurisdiction  or  not  ;  but  his  officers  may  apparently 
justify  under  any  writ  not  ba"d  on  its  face.  Carratt  v.  Morley,  I  Q.  B.  18  ; 
Andrews  v.  Marris,  Ibid.,  3.     Conf.  Morse  v.  James,  i  Willes,  122. 

(/)  Parsons  v.  Lloyd,  2  W.  HI.  845. 

(tn)  Andrews  v.  Marris,  i  Q.  B.  3  ;  Parsons  v.  Lloyd,  2  W.  BI.  845. 

(«)  Parroit  v.  Mumford,  2  Esp.  585.  Expressions  are  used  in  Wood  v. 
Finnis  which  imply  that  the  liability  of  a  sheriff  extends  t'Cyond  that  of  any 
employer.  The  difference,  however,  between  the  position  of  a  sheriff  and  that 
of  an  ordinary  master  seems  to  be  slight. 


GENERAL    RULES.  453 

arrests  the  right  person  after  the  return  day,  or  takes  a 
wrong  person's  goods  under  3.  fi.  fa.,  or  even  if  he  arrests 
under  a  writ  of  fi.  fa.,  or  is  guilty  of  extortion  in  insist- 
ing on  being  paid  a  sum  of  money  as  the  price  of 
liberation  from  imprisonment  under  a  ca.  sa.,  the  sheriff 
is  liable.  Though  none  of  these  acts  are  done  in  pur- 
suance of  the  authority  of  the  writ,  yet  they  are  done 
in  the  execution,  or,  as  it  is  said,  under  color  of  it,  and 
the  sheriff"  is  exactly  in  the  same  position  as  if  he  had  done 
these  acts  himself."  {o) 

The  sheriff"  is  not  liable  for  wrongful  acts  of  his  officers 
which  are  not  done  under  color  of  the  writ,  e.  g.,  for  an 
act  of  extortion  committed  by  a  person  who  is  not  the 
person  to  whom  the  writ  is  addressed,  {p)  The  plaintiff" 
and  his  attorney  are  not  liable  unless  they  interfere  in 
the  execution  of  the  writ,  in  which  case  they  are.  {g) 

What  torts  can  not  be  joint. — Some  few  torts,  [436] 
such  as  slander  (and  perhaps  seduction),  can  not  be 
the  act  of  more  than  one  person.  For  "  one  action  will 
not  lie  against  several  persons  for  speaking  the  same 
words,  as  where  a  man  brought  an  action  against  two  foj 
saying  '  thou  hast  stolen  plate,  .  .  .  and  we  do  arrest 
thee  of  that  felony,'  and,  there  being  a  verdict  for  the 
defendant,  it  was  moved  in  arrest  of  judgment,  that  the 
action  does  not  lie  against  two  jointly,  because  the  words 
of  the  one  are  not  the  words  of  the  other;  but  there 
ouofht  to  have  been  several  actions,  in  like  manner,  as  two 
persons  can  not  bring  a  joint  action  for  words ;  and  so  it 
was  resolved  bv  the  court,  for  these  several  causes  can 

(o)  Woods  V.  Finnis,  7  Exch.  371.  per  Curiam.  See  Smart  v.  Hiitton,  8  A. 
&  E.  568  ;  Gregory  v.  Coiterell.  5  E.  &  B.  571  ;  25  L.J.  33.  Q-  l^.  (Ex.  Cli.) 
ka])h.'iel  V.  Goodman.  8  A.  &  E.  565. 

(/)  Slack  V.  brander,  I  Esp.  42  ;  George  v.  Pcrring  4  Esp.  63. 

(y)  .Meredith  v.  Flaxman.  5  C.  &  I'.  99.  Conf.  Cronsliaw  v.  Chapman.  7  H. 
&  N.  gii  ;  31  L.  J.  277.  Ex.  ;  Collins  v.  Evans,  5  Q.  15.  820  ;  13  \..  J.  rSo.  Q. 
15.  ;  Childcr,  v.  Wooler,  29  \..  J.  129.  Q.  B.  ;  Ilumphrys  v.  Pratt.  5  I'.ligh,  N.  S., 
154  ;  I).ivi.-s  V.  Jenkins.  Ii  M.  &  W.  745  ;  12  L.  J.  386.  Ex.  ;  Rowlcs  v.  Senior, 
8  Q.  Ii.  677  ;  15  I..  J.  231.  Q.  H. ;  Green  v.  El^'ec.  5  Q-  «■  99  :  '•»  I-  J-  '<^2-  Q- 
B.  The  sheriff  is  not  liable  for  arrest  of  privileged  persons.  Countess  of  Rut- 
bnd's  Ca^e.  6  Coke,  54  a  ;  Philips  v.  Naylor,  3  II.  &  N.  14  ;  27  L.  J.  223,  223. 
K^       I  II.  \  N.  565  ;  2.5  L.  J.  225,  Ex.  (Ex.  Ch.). 


454  FAR  HI:  S     TO     ACTIONS. 

no    more  produce  a  joint   action  than  their  words   and 
tongues  may  be  said  to  be  one."  (r) 

Judgment  recovered. — A  judgment  recovered  against 
one  of  several  Avrong-dt)ers  is  (even  without  execution  or 
satisfaction)  a  bar  to  an  action  against  the  others  for  the 
same  cause  of  action.  If  X.,  Y.,  and  Z.  arc  joint  wrong- 
doers a  judgment  against  X.  for  the  joint  wrong  is  a  bar 
to  an  action  against  Y.  or  Z.  {s) 

But,  as  a  general  rule,  a  judgment  against  one  person 
for  one  cause  of  action  can  not  be  a  defense  to  an  action 
against  another  person  for  another  cause  of  action.     But 
to    this   principle   there  is  an  exxeption  in   the    case   of 
actions  for  conversion,  or  for  trespass  to  goods.     It  has 
been  already  pointed  out  that  if  X.  converts  the  goods  of 
A.  and  sells  them  to  Y.,  who  refuses  to  give  them  up  to  A., 
X.  and  Y.  are  each    liable  to  be  sued  by  A.     It  is  clear,^ 
also,  that  there  is  in  this  case  a  separate  cause  of  action 
against    each,    yet    the   recovery  of  a  judgment  by   A. 
against  X.,  if  followed  by  satisfaction,  is  a  bar  to 
[437]    an  action  against  Y.  (/)     The  reason  of  this   pecu- 
liarity appears  to  be  that  the  damage  to  A.  is  the 
loss  of  the  chattel ;  and  though  the  conversion  by  X.  is 
different  from  the  conversion  by  Y.,  compensation  by  the 
one  satisfies  the  claim  of  the  plaintiff,  and  is  therefore  a 
defense  in  an  action  against  the  other.     Hence,  the  mere 
judgment  is  no  defense  unless  accompanied  by  satisfaction. 
When,  therefore,  the  plaintiff  has  obtained  a  merely  inter- 
locutory judgment  against  the  defendant  he  may  drop  the 
action  and  proceed  against  the  other ;  {ii)  and  where  the 
damage  is  not  estimated  on  the  footing  of  the  full  value  of 
the  goods  this  fact  is,  it  seems,  an  answer  to  a  plea  of 
judgment  recovered  against  one  defendant  in  an  action 
brought  against  the  other,  {x)     A  more  technical  ground, 
sometimes  given  for  the  effect  of  judgment  and  satisfaction, 
is  that  "  by  recover}-  in  trespass  for  taking,  or  trover  for 

(r)  Coryton  v.  I.itheliye,  2  Wms.  Saiind.  117  c. 

(s)  Ding  V.  Hoare,  13  M.  &  \V.  494;   14  L.  J.  29,  Ex. 

(/)  Cooper  V.  Shepherd,  3  C.  15.  266  ;   15  L.  J.  237,  C.  P. 

(m)  Marston  v.  Phillips,  12  W.  R.  S. 

(x)  Wilbraham  v.  Snow,  2  Wms.  Saiind.  47  d  c,  note  («). 


GENERAL    RULES. 


455 


converting,  personal  chattels,  followed  by  satisfaction,  the 
property  is  altered,  and  rests  in  the  defendant;  for  solutio 
pretii  emptionis  loco  habetur."  {y) 

Torts  foutided  on  contract,  (s) — As  a  plaintiff  can  be 
compelled  by  a  plea  in  abatement  to  sue  all  of  several  co- 
contractors,  but  ma}',  at  his  option,  sue  any  one  or  more 
of  several  joint  wrong-doers,  the  question  arises  whether, 
when  an  action  is  brought  for  a  tort  founded  on  contract, 
a  plaintiff  can  or  can  not  be  compelled  to  join  all  the  per- 
sons who  are  parties  to  the  contract ;  or,  m  other  words, 
whether  he  can  avoid  a  plea  in  abatement  b}'-  treating  a 
breach  of  contract  as  a  tort. 

The  answer  to  this  inquiry  is,  that  what  must  be  looked 
to  is  the  real  nature,  and  not  the  form,  of  the  action, 
"  therefore  if  an  action  be  brought  against  one  only 
of  several  persons,  upon  niatter  founded  in  contract,  [438J 
though  the  form  of  the  action  be  case  for  malfeas- 
ance or  non-feasance,  and  the  plea  not  guilty  [i.  c,  though 
the  action  be  in  form  an  action  for  tort],  the  defendant 
[may]  plead  it  in  abatement,  (a)  .  .  .  and  from  all  the 
cases,  and  especially  from  Bretherton  v.  Wood,  {d)  the 
principle  appears  to  be  this,  that  where  the  action  is 
maintainable  for  the  tort  simply  without  reference  to  any 
contract  made  between  the  parties,  no  advantage  can  be 
taken  of  the  omission  of  some  defendants,  or  of  the  joinder 
of  too  many  ;  (^)as,  for  instance,  in  actions  against  carriers 
which  are  grounded  on  the  custom  of  the  realm.  But 
where  the  action  is  not  maintainable  without  referring  to 
a  contract  between  the  parties,  and  laying  a  previous 
ground  for  it  by  showing  such  contract,  there,  although 
the  plaintiff  shapes  his  case  in  tort,  yet  he  shall  be  liable 
to  a  pica  in  abatement  if  he  omit  anv  defendant,  or  to  a 

(y)  Ibid.  47^^  ;  Bird  v.  Randall,  3  Burr.  1345;  BucUlaiul  v.  Johnson,  15 
C.  B.  145  ;  23  L.  J.204,  C.  r. 

(z)  See  a/i/c'. 

{f?)  Towfll  V.  Layton,  l  B.  &  P.,  N.  R..  365  ;  Max  v.  Roberts,  Ibid.  454  ; 
Wcall  V.  King,  \2  East,  452;  Lush,  I'ractic;,  3rd  ed.  212;  Bullen,  rica<iintj3, 
3rd  c(i.,  708  ;  Cabell  v.  Vaughan,  i  Wins.  Saund.  291  e,  291  /. 

(6)  3  H.  &  B.  5.1. 

(O  ChajMcr  XXXIV. 


456  PARTIES     TO    ACTIONS. 

nonsuit  if  lie  join  too  many,  for  he  shall  not,  by  adopting 
a  particular  form  of  action,  alter  the  situation  of  the 
defendant."  [d) 

It  is,  however,  as  already  pointed  out,  {c)  sometimes 
difficult  to  determine  whether  a  given  action  is,  in  sub- 
stance, an  action  ex  contractu,  or  an  action  ex  delicto. 

Exception. — Persons  sued  as  joint  owners  of  land. 

There  is  a  distinction  between  ordinary  actions  for  tort 
and  those  which  are  brought  against  persons  in  respect 
of  their  common  interest  in  land  ;  for  if  one  only  of 
several  joint  tenants  or  tenants  in  common  is  sued  for  an 
injury  arising  from  the  state  of  their  land,  the  non-joinder 

of  the  other  co-tenants  may  be  pleaded  in  abate- 
[439]    nient,  and  this  rule  applies  to  partners  as  well  as  to 

persons  who  are  not  partners.  (/) 


Rule  99. — The  liability  to  be  sued  for  a  tort  can 
not  be  transferred  or  assigned. 

This  is  a  mere  application  of  the  general  principle,  {g) 
that  the  liability  to  be  sued  can  not  be  transferred. 

Exception. — Assignment  by  death 

The  one  real  exception  to  this  rule  is,  that  the  liability 
to  be  sued  for  some  torts  is  assigned  by  death,  i.  e.,  the 
personal  representatives  of  the  wrong-doer  can  in  some 
cases  be  sued  for  wrongs  committed  by  him.  {h) 

An  apparent  rather  than  a  real  exception  arises  in  the 
case  of  marriage.  A  woman  remains  after  as  before  mar- 
riage liable  for  the  torts  committed  by  her,  but  since  she 

{d)  Cabell  v.  Vaughan,  i  Wms.  Saund.  291  /. 
(e)  See  ante. 

if)  See  I    Lindley,  Partnership,  2nd  ed..  489  ;   i    Wms.  Saund.  291  /Sag. 
Mitchell  V.  Tarbutt,  5  T.  R.  649. 
( g )  Rule  9. 
(h)  Chapter  XXXII. 


GENERAL    RULES.  457 

can  not  during  coverture  be  sued  alone,  her  husband 
must  be  joined  as  defendant  in  actions  for  wrongs  done 
by  her.  {i) 

Rule  ioo. — Each  wrong-doer's  separate  liability 
to  be  sued  for  a  tort  passes  on  his  death  (if  it  survives 
at  all)  to  his  personal  representatives.  The  joint 
liability  of  several  wrong-doers  passes  on  the  death 
of  each  to  the  survivors. 

X.,  Y.,  and  Z.   commit  a  joint  tort  against  A.,  e.  g.y 
convert  his  goods.     X.,  and  Y.,  and  Z.  are  each  hable  to 
be  sued  separately.     This  separate  liability  passes 
on  the  death  of  Z.  (supposing  it  to  survive  him  at   [440] 
all)  {k)  to  M.,  his  representative. 

X.,  Y.,  and  Z.  are  further  liable  to  be  sued  jointly. 
This  joint  Hability  survives  on  the  death  of  Z.  against  X. 
and  Y.,  but  it  does  not  pass  to  M.,  Z.'s  representative. 
In  other  words,  after  Z.'s  death  A.  may  sue  either  X.  or 
Y.,  or  X.  and  Y.,  or  M. ;  but  he  can  in  no  case  sue  X., 
and  Y.,  and  M. 

Joint  wrong-doers  are,  in  fact,  in  the  same  position  as 
persons  who  have  broken  both  a  joint  and  several  con- 
tract. The  common  liability  on  the  joint  contract  passes 
on  the  death  of  one  contractor  to  the  surviving  contract- 
ors. The  separate  liability  of  each  on  his  separate 
contracts  passes  on  the  death  of  each  to  his  representa- 
tives. 

(;■)  Rule  107.  The  liability  for  torts  is  in  no  case  transferred  by  bank- 
fuplcy. 

(k)  Chapter  XXXII. 


458 


PARTIES     TO    ACTIONS. 


CHAPTER  XXVI. 


PRINCIPAL     AND    AGENT. 


Rule  ioi. — A  principal  is  liable  to  be  sued  for 
the  torts  of  an  agent  either  committed  by  the  com- 
mand of  the  principal,  or  subsequently  assented  to  or 
ratified  by  him.* 


I.  Exum  V.  Bristor,  35  Miss.  391  ; 
Elliott  V.  McKay,  4  Jones,  60 ;  Mc- 
Mahon  v.  Davidson,  12  Minn.  373; 
and  if  the  principal  sue  the  agent 
for  the  results  of  his  act,  he  ratifies 
it.  Partridge  v.  White,  56  Me. 
564;  Harris  v.  Miner,  28  111.  135; 
Drennan  v.  Walker,  21  Ark.  539; 
Shiras  v.  Morris,  3  Cow.  60 ;  Peters 
V.  Ballestier,  3  Pick.  495 ;  Cope- 
land  V.  Ins.  Co.,  6  Pick.  198 ; 
Frank  v.  Jenkins,  22  Ohio  St.  597  ; 
and  it  is  the  same  if  he  receive  any 
subsequent  benefit  from  the  tort; 
Veazie  v.  Williams,  8  How.  138; 
Doggett  V.  Emmerson,  3  Story, 
700  ;  Davis  v.  Bemis,  40  N.  Y.  453  ; 
Allerton  v.  Allerton.  50  N.  Y.  670  ; 
Elwell  V.  Chamberlain,  31  N.  Y. 
619;  Kibbs  V.  Insurance  Co.,  11 
Gray,  163 ;  Lee  v.  West,  47  Ga. 
311  ;  Morton  v.  Scull,  23  Ark.  289. 
But  it  is  doubtful  if  a  city  govern- 
ment can  knowingly  ratify  the  neg- 
ligent acts  of  its  officers.    Mitchell 


V.  Rockland,  52  Me.  125;  Perley  v. 
Georgetown,  7  Gray,  464. 

The  principal  is  liable  for  the 
tortious  acts  incident  to  the  agency. 
Detroit  v,  Corey,  9  Mich.  165; 
Darmstetter  v.  Moynaham,  27 
Mich.  188. 

So,  when  the  employment  gives 
the  agent  means  or  opportunity 
which  he  uses  while  so  employed  to 
commit  an  injury  to  another.  New 
Orleans,  &c.,  Ry.  Co.  v.  Allbritton, 
38  Miss.  277  ;  Mayee  v.  McLure. 
36  Miss.  400.  But  a  public  officer 
is  not  liable  for  the  torts  of  his  sub- 
ordinates. Franklin  v.  Low.  i 
Johns.  396 ;  Bayley  v.  Mayor,  5 
Hill,  531  ;  McMillan  v.  Eastman,  4 
Mass.  378;  Schroyer  v.  Lynell,  8 
Watts,  453;  Richmond  v.  Long,  17 
Gratt.  375  ;  Sawyer  v.  Corse,  19 
Gratt.  230  ;  but  see  Ogden  v.  Max- 
well, 3  Blatchf.  319. 

When  a  third  person  had  a  right 
to    believe  the  agent  was    acting 


PRINCIPAL    AND    AGENT. 


4S9 


If  A.,  by  the  command  of  P.,  commits  a  tort  against 
T.,  e.  g.,  converts  his  goods,  {a)  P.  is  liable  to  be  sued  as 
well  as  A.  P.  is  liable,  strictly  speaking,  not  as  principal 
or  master,  but  as  a  joint  wrong-doer,  {b) 

P.  can,  therefore,  be  sued  directly  for  the  tort,  and  if 

(<j)  Throughout  this  chapter  P.  stands  for  the  principal,  or  employer  ;  A.  the 
agent  or  servant  employed  ;  T.  the  third  party  injured. 

{b)  Story,  Agency,  s.  455  ;  Smith,  Master  and  Servant,  2nd  ed.,  207. 


within  his  authority,  though  he  was 
acting  in  excess  or  abuse  of  it,  the 
principal  is  responsible.  Walsh  v. 
Hartford  Ins.  Co.,  73  N.  Y.  10; 
Armour  v.  Michigan  Cent.  Ry.  Co., 
65  N.  Y.  122  ;  Barnard  v.  Wheeler, 
24  Me.  414.  But  where  the  agent 
has  liberty  to  take  his  own  course, 
the  principal  is  not  liable.  Milliard 
V.  Richardson,  3  Gray,  349  ;  Lin- 
ton V.  Smith,  8  Gray,  147  ;  Forsyth 
V.  Hooper,  11  Allen,  419;  Clark  v. 
Railroad,  28  Vt.  103  ;  Metz  v.  Buf- 
falo, &c.,  R.  R.  Co.,  58  N.  Y.  61  ; 
Kelly  V.  Mayor,  11  N.  Y.  432; 
Pfau  V.  Williamson,  63  111.  16  ;  De 
Forrest  v.  Wight,  2  Mich.  388; 
Cincinnati  v.  Stone,  5  Ohio  St.  38; 
Barry  v.  St.  Louis,  17  Mo.  J  21. 
Unless  the  principal  expressly  re- 
tained the  right  to  interfere.  Stone 
V.  Codman,  15  Pick.  297;  Chicii.go 
V.  Joney,  60  111.  383  ;  Luttrell  v. 
Hazen,  3  Sneed,  20;  and  it  is  no 
defence  that  he  forbade  the  aa. 
Philadelphia,  &c.,  R.  R.  Co.  v. 
Derby,  14  How.  468;  Goddard  v. 
Railroad  Co.,  57  Me.  202;  Bryant 
V.  Rich,  106  Mass.  180;  Weed  v. 
Railroad  Co.,  17  N.  Y.  ;62  ;  Cos- 


grove  V.  Ogden,  49  N.  Y.  255  ; 
Penn.  Steam.  Nav.  Co.  v.  Hunger- 
ford,  6  Gill  &  J.  291  ;  Priester  v. 
Angley,  5  Rich.  47  ;  Passenger  R. 
R.  Co.  V.  Young,  21  Ohio  St.  518; 
Sherley  v.  Billings,  8  Bush,  147  ; 
Moir  V.  Hopkins,  16  111.  213;  Gar- 
retson  v.  Duenckel,  50  Mo.  104. 

If  the  agent  is  responsible,  he  and 
the  principal  may  be  severally 
liable.  Creed  v.  Hartman,  29  N. 
Y.  591  ;  Sproul  v.  Hemingway,  14 
Pick.  I  ;  Gaso  v.  Coblentz,  43  Mo. 
337  ;  Sewall  v.  St.  Paul,  20  Minn. 
511;  or  they  may  be  sued  jointly  ; 
Hewitt  v.  Swift,  3  Allen,  420; 
Phelps  V.  Wait,  30  N.  Y.  78  ;  Hun- 
ter V.  Hudson,  20  Barb.  493;  Car- 
man V.  Railroad,  4  Ohio,  399 ; 
Galena  R.  R.  Co.  v.  Rae,  18  lU. 
488;  Severin  v.  Eddy,  52  111.  189. 

An  agent  is  personally  liable  for 
deceit.  Howe  v.  Newmarch,  12 
Allen,  49;  Atlantic  Co.  v.  Mcr 
chants'  Co.,  10  Gray,  532  ;  Durst  v. 
Barton,  47  N.  Y.  167  ;  Griswold  v. 
Haven,  25  N.  Y.  595  ;  Fox  v. 
Northern  Liberties,  3  W.  &  S.  103; 
Moore  v.  Sanborne,  2  Mich.  519; 
Evansville  v.  Baum,  26  Ind.  70. 


46o  PARTIES     TO    ACTIONS. 

the  wrong  itself  is  one  for  which  trespass  lies,  e.  g.,  an 
assault,  or  an  arrest,  can  be  sued  as  a  trespasser.  His 
liability  does  not  depend  upon  the  existence  of  the  rela- 
tion of  master  and  servant,  (^r)  and  therefore  may  arise 
where  this  relation  does  not  exist.  P.  was  driving  in  a 
hired  carriage,  and  ordered  the  postilion  to  drive  in  a 
reckless  manner.  He  was  held  responsible  for  an  injury 
caused  by  such  driving,  though  the  owner  of  the  carriage 
was  the  postilion's  master,  and  would  be,  as  a  general 
rule,  the  person  liable  for  torts  committed  by  him  while 
driving,  {d)  "The  cases  in  which  it  has  been  decided 
that  an  action  will  not  lie  against  the  hirer  of  a  car- 
[442]  riage  and  horses  for  the  misconduct  of  the  driver, 
not  being  his  servant,  do  not  apply  here ;  for  this  is 
an  action  treating  the  defendant  as  a  co-trespasser,  and  is 
not  brought  against  him  as  a  master  for  the  misconduct 
of  his  servant.  The  mere  fact  of  the  defendant  being  one 
of  the  persons  who  hired  the  carriage  and  horses  would 
not  make  him  liable  in  this  action ;  but  it  must  be  shown 
that  he  was  assenting  to  the  act  from  which  the  injury 
occurred  to  the  plaintiff."  {e) 

If  P.  expressly  commands  A.  to  do  a  wrongful  act  it 
is  easy  to  see  that  he  is  a  joint  wrong-doer  with  A.     But 
a  person  may  be  looked  upon  as  authorizing  or  command- 
er-) McLaughlin  v.  Pryor,  4  M.  &  G.  48. 
(d)  See  Rule  102. 

{e)  McLaughlin  v.  Pryor,  4  M.  &  G.  60,  judgment  of  Erskine,  J.  It  is  of 
importance  to  distinguish  the  direct  liability  of  a  person  who  orders  a  wrong  to 
be  committed,  and  therefore  is  looked  upon  as  a  joint  wrong-doer,  with  the 
person  through  whose  instrumentality  the  injury  is  done,  from  the  indirect  lia- 
V)ility  of  a  master  for  the  acts  of  his  servants.  In  the  first  case  the  principal 
is  liable,  because  the  act  complained  of  is  his  own  act ;  in  the  second  case  the 
employer  is  liable,  not  because  he  did,  or  authorized,  the  particular  act,  but 
because  his  employment  of  a  negligent  servant  has  led  to  tlie  act  complained 
of  being  done.  The  distinction  is  very  nearly  equivalent  to  that  between  tres- 
pass and  case.  Wherever  a  master  can  be  sued  in  trespass  he  must  be  consid- 
ered as  directly  authorizing  the  wrong  done,  and  where  he  is  only  indirectly 
responsible  he  must  be  sued  in  case.  There  are,  however,  torts  for  which  the 
principal  is  directly  responsible,  but  for  which  the  only  form  of  action  against 
either  principal  or  agent  is  case,  e.  g.,  an  action  for  fraud  or  for  conversion 
(since  trover  is  a  species  of  case).  See  Smith,  Master  and  Servant,  2nd  ed.,  207  ; 
Scott  V.  Shepherd,  r  Smith,  L.  C,  6th  ed.,  417  ;  Sharrod  v.  London  and  North- 
Western  Rail.  Co.,  4  Exch    580. 


PRINCIPAL    AND    AGENT.  461 

ing,  and  tnerefore  as  directly  responsible  for,  the  commis- 
sion of  wrong-s  which  he  does  not  order.  Thus,  if  a 
wrongful  act  on  the  part  of  a  servant  be  a  direct  or  neces- 
sary^ consequence  of  an  act  which  his  master  has  ordered 
to  be  done,  his  master  will  be  directly  liable  for  the 
wrongful  act  itself.  "  Suppose  the  case  of  two  persons 
possessed  of  contiguous  unenclosed  land,  and  that  one 
of  them  desired  his  servant  to  drive  his  cattle,  but  not 
to  let  them  go  upon  the  land  of  his  neighbor ;  the  mas- 
ter will  be  answerable  in  trespass  [i.  e.,  directly  for  the 
act],  because  he  has  only  a  right  to  expect  from 
his  servant  ordinary,  and  not  extraordinar}',  care.  [443] 
If  the  servant,  therefore,  in  carrying  into  execution 
the  orders  of  his  master,  uses  ordmar}^  care,  and  an  injur}' 
is  done  to  another,  the  master  is  liable  in  trespass.  If 
the  injury  arise  from  want  of  ordinar}'  care  the  master 
will  only  be  liable  in  case  "  ;  (/")  or,  to  put  the  distinction 
in  less  technical  language,  if  P.  employs  A.  to  do  an  act 
which  naturally  leads  to  the  commission  of  a  wrong,  P. 
is  directly  responsible  for  the  wrong  itself,  just  as  if  he 
had  ordered  that  wrong  to  be  committed  ;  whilst,  on  the 
other  hand,  if  P.  employs  A.  to  do  an  act  which  may  be 
done  without  the  commission  of  any  wrong,  and  A., 
through  his  carelessness  or  incompetence,  injures  T.  in 
the  course  of  carrying  out  T.'s  directions,  then  P.  is  not 
responsible  f(jr  the  act  itself,  though,  if  he  is  A.'s  mastcV, 
he  may  be  responsible  for  the  consequences  of  employing 
an  incompetent  servant,  {g) 

If,  again,  a  wrongful  act  be  committed  by  a  servant  in 
the  usual  course  of  his  employment,  although  there  be  no 
express  command  on  the  ])art  of  his  master  to  do  the 
specific  act  complained   of,    yet  in  such  cases  the  master 

(  /)  Gregory  v.  Piper.  9  15.  &  C.  591.  594.  jiKigmcnt  of  Lrni.KDAi.K,  J. 

( g)  See  Rule  102.  On  this  point  the  following  cases  should  be  compared  : 
McManus  v.  Cricket,  l  East,  106  ;  Gordon  v.  Kolt,  4  Exch.  365,  esp.  366,  367  ; 
•Sharrod  v.  London  and  Nortii-Wcsiern  Rail.  Co.,  4  E.Nch.  580;  Goff  v.  Great 
Northern  Rail.  Co.,  30  L.J.  14S,  Q.  H. ;  Siymour  v.  Greenwood,  6  H.  &  N. 
359  :  30  L.  J.  189.  Ex. ;  7  ir.  &  N.  355  ;  30  L.  J.  327,  Ex.  (Ex.  Ch.).  This  dis- 
tinction  between  direct  and  indirect  lial>ility  m.iy  appear  a  fine  one,  but  is  of 
consequence,  and  will  be  f')und  to  cx|)lain  some  cases  in  which  persons  are 
responsible  for  the  acts  of  others  who  yet  are  not  their  servants. 


462  PARTIIiS     TO    ACTIONS. 

may  be  liable  to  an  action  of  trespass,  i.  e.,  as  bein^ 
directly  responsible  lor  the  act,  for  a  command  will  be 
implied  from  the  nature  of  the  servant's  employment,  {h) 
But  the  direct  liabilit}-  in  such  instances  can,  it  is  con- 
ceived, be  with  difficulty  distinguished  from  a  master's 
indirect  liability  for  the  acts  of  his  servant  done  in  the 

course  of  his  employment,  {i) 
[444]  Ratification,  ik) — The  person  who  ratifies  a  tort 

becomes  a  wrong-doer  from  the  beginning.  (/) 
Thus,  if  P.  ratifies  the  unauthorized  purchase  by  A.,  his 
agent,  of  a  chattel  which  the  vendor  had  no  right  to  sell, 
P.  is  guilty  of  conversion,  although  at  the  time  of  the 
ratification  he  had  no  knowledge  of  the  circumstances 
which  made  the  sale  unlawful.  (;«) 

The  following  points  should  be  noticed  : 

1st.  In  order  that  the  principal  may  be  bound,  the 
tort  {c.  g.,  a  trespass)  must,  at  the  time  when  A.  com- 
mitted it,  have  been  intended  to  be  done  on  behalf,  and 
for  the  benefit,  of  P.  ;  or,  as  it  is  sometime  expressed,  (;/) 
in  the  name,  and  avowedly  on  behalf,  of  P.  "  He  that 
receiveth  a  trespasser,  and  agreeth  to  a  trespass  after  it 
is  done,  is  no  trespasser,  unless  the  trespass  was  done  to 
his  use  or  for  his  benefit,  and  then  his  agreement  subse- 
quent amounteth  to  a  precedent  commandment."  {d) 

2nd.  The  principal  must,  in  order  to  be  liable,  unequiv- 
ocally adopt  the  act,  and  it  would  seem,  though  this 
point  is  not  quite  clear,  that  the  act  must  be  ratified  and 
adopted  by  him,  either  with  the  full  knowledge  of  it 
being  tortious,  or  else  with  the  intention  of  adopting  the 
act,  whether  right  or  wrong.  (/ ) 

3rd.  A  principal  may  sometimes  take  advantage  of  a 

{h)  Smith,  Master  and  Servant,  2nd  ed.,  2o3. 

(?)  See  Rule  102. 

{k)  See  anfe. 

(/)  iJird  V.  Brown,  4  Ex.  7S6  ;  19  L.  J.  154,  Ex.  ;  Addison,  Torts,  3rd  ed , 
932,  933- 

(jn)  Hilbery  v    Hatton,  2  H.  &  C.  822  ;  33  L.  J.  190,  Ex. 

(«)  See  Addison,  Torts,  3rd  ed.,  932. 

{o)  Coke,  4  Ins.  317. 

(/)  Compare  Addison.  Torts,  3rd  ed..  932  ;  Roe  v.  Birkenhead  Rail.  Co.,  7 
Exch.  \f^\  Hilbery  v.  {4atton    2  H.  &  C.  822  ;  33  L.  T.  IQO.  Ex. 


PRINCIPAL    AND    AGENT.  463 

wrongful  act  done  on  his  behalf,  if  it  were   one  which, 
though  wrongful  in  the  person  who  did  it,  might  have 
been  lawfully  done  by  the  principal  who  ratifies  it.  {q) 
"  If  A.,  professing  to  act  by  my  authority,  does  that  which 
prima   facie   amounts    to   a   trespass,   and    I    afterw^ards 
assent  to  and  adopt    his  act,  there  he  is  treated  as 
having  from  the  beginning  acted  by  my  authority,    [445] 
and  I  become  a  trespasser,  unless  I  can  justif}^  the 
act  which  is  to  be  deemed  as  having  been  done  by  my 
previous  sanction.     So  far  there  is  no  difficulty  in  applying 
the  doctrine  of  ratification,  even  in  cases  of  tort.     The 
party  ratifying  becomes  as  it  were  a  trespasser  by  estoppel ; 
he  can  not  complain  that  he  is  deemed  to  have  authorized 
chat  which  he  admits  himself  to  have  authorized.     But 
the  authorities  go  much  further,  and  show  that  in  some 
cases  where  an  act  which,  if  unauthorized,  would  amount 
to  a  trespass,  has  been  done  in  the  name  and  on  behalf  of 
another,  but  without  previous  authority,  the  subsequent 
ratification  mav  enable  the  party  on  whose  behalf  the  act 
was  done,  to  take  advantage  of  it,  and  to  treat  it  as  having 
been  done  by  his  direction.     But  this  doctrine  must  be 
taken  with    the  qualification  that  the  act  of  ratification 
must  take  place  at  a  time,  and  under  circumstances,  when 
the  ratifying  party  might  himself  have  lawfully  done  the 
act  which  he  ratifies."  (r) 

Rule  102. — An  employer  or  master  is  liable  to  be 
sued  for  the  torts  of  his  servant  if  committed  in  the 
course  of  the  servant's  employment,  and  for  his 
master's  benefit,  or  in  other  words,  in  the  service  of  his 
master,  {s)  ' 

(<7)  iJird  V.  Brown,  4  Excli.  786;   rg  L.  J.  154.  Ex. 

(r)  liiid  V.  Brown,  4  Exch.  799,  per  Curiam.  The  principle,  though  chiefly 
■  illustrated  by  actions  for  trespass,  applies  to  actions  for  other  wrongs.  See 
Addison,  Torts,  3rd  ed.,  853,  854;  liilbery  v.  Hatton,  2  H.  &  C.  822;  33  L 
J.  190,  Ex.  ;  Giles  v.  Tafl"  Vale  Rail.  Co.,  2  E.  &  B.  822. 

{s)  Sec  Limpus  v.  London  General  Omnibus  Co.,  i  H.  &  C.  526;  32  L.  J 
34,  Ex.  (Ex.  (Ti.);  Seymour  v.  Greenwood,  30  L.J.  192,  Ex.,  judgment  ol 
Martin,  1'.  ;  Lauglierv.  rointer,  5  B.  &C.  547.  554  :  Quarman  v.  Burnett, 6  M 
&  W.  499  ;   Barwick  v.  English  Joint  Stock  Bank,  L.  R.  2,  Ex.  259  (Ex.  Ch.). 

1.  When  a  master  employs  a  ser-  use  force  against  another's  person 
vant  in  a  service  in  which  he  must     or  property,  and  the  servant  about 


464  rJK77J':S     TO    ACTIONS. 

If  P.  orders  A.  to  commit  a  tort,  P.  is  directly  responsi- 
ble for  it,  as  being  in  cIToct  himself  the  wrong-doer. 
[446]  But  a  person  who  cnijiloys  another  as  his  servant 
incurs  an  indirect  liability  of  a  more  extensive^ 
character,  for  he  is  responsible,  not  only  for  acts  which  he 
either  directly  or  indirectly  orders,  but  also  for  all  the 
acts  or  omissions  which,  even  though  the  employer  does 
not  order  them,  are  committed  by  his  servant  in  the  course 
of  his  service,  or,  in  other  words,  which  are  the  result  of 
the  master's  employing  the  servant,  {t)  "A  master  is 
ordinarily  liable  to  answer  in  a  civil  suit  for  the  tortious 
acts  of  his  servant,  if  these  acts  are  done  in  the  course  of 
nis  employment  in  his  master's  service.  .  .  .  This  rule, 
with  some  few  exceptions,  {u)  .  .  is  of  universal  appli- 
cation, whether  the  act  of  the  servant  be  one  of  omission 
or  commission  ;  whether  negligent,  fraudulent,  or  deceit- 
ful, {x)  or  even  if  it  be  a  positive  act  of  malfeasance  or  mis- 
conduct ;  if  it  be  done  in  the  course  of  his  employment, 
the  master  is  responsible  for  it  civiliter  to  third  persons  ; 
{y)  and  it  makes  no  difference  that  the  master  did  not 
actually  authorize,  or  even  know  of,  the  servant's  act  or 
neglect,  for  even  if  he  disapproved  of  or  forbade  it,  he  is 
equally  liable  if  the  act  be  done  in  the  course  of  the  ser- 

(t)  The  liability  of  a  master  for  the  acts  of  his  servant  is  analogous  to  the 
liability  of  an  owner  for  injuries  committed  by  animals  belonging  to  him. 
Neither  the  master  nor  the  owner  is  liable,  because  he  has  himself  done  the 
particular  act  complained  of.  He  is  responsible,  because  the  wrong  is  the 
result  of  his  having,  in  the  one  case,  emplo3'ed,  <?.  ^.,  an  incompetent  servant, 
and  in  the  other,  kept  an  animal  of  habits  injurious  to  his  neighbors. 

(«)  For  exceptions,  see  post. 

{x)  Compare  Chapter  XXVIII. 

(;')  Story,  Agency,  s.  452  ;   Paley,  Agency,  294-298. 

such    employment  uses  it  unlavir-  or  forbidden  by  the  master.    Phila- 

fuUy   to    an   unlawful    extent,   the  delphia,  &c.,  Ry.  Co.  v.  Derby,  14 

master  and  he  are  liable  jointly  as  How.  486;    Maddox  v.  Brown,  71 

trespassers.    Holmes  v.  Wakefield,  Me.  433 ;   Simonton   v.  Loring,  68 

12  Allen,  581;    Hewitt  v.  Swift,  3  Me.  164;  Goddard  v.  Grand  Trunk 

Allen,   422;    Moore    v.    Fitchburg  Ry.  Co.,  57  Me.  211  ;  Atlantic,  &c., 

Ry.,  4  Gray,  467.    The  master  is  Ry.  Co.  v.  Dunn,  19  Ohio  St    167; 

responsible  for  the  torts  of  his  ser-  Chicago,  &c.,  Ry.  Co.  v.  Williams, 

vant  in  the  course  of  his  employ-  55  111.  186;  Garretson  v.  Duenckel, 

ment,    whether    it    be    negligent,  50    Mo.    107  ;    Redding    v.   South 

fraudulent  or    deceitful,  authorized  Carolina  Ry.  Co.,  3  S.  C.  6. 


PRINCIPAL    AND    AGENT,  46$ 

vant's  employment."  {s)  "  I  am  liable,"  it  has  oeen  said 
in  the  House  of  Lords,  "  for  what  is  done  by  me,  and 
under  m}^  orders,  by  the  man  I  employ,  for  I  may  turn 
him  off  from  that  employ  when  I  please.  The  reason  I 
am  liable  is  this,  that  by  employing  him  I  set  the  whole 
thing  in  motion,  ajid  what  he  does,  being  done  for  my 
benefit,  I  am  responsible  for  the  consequences  of 
doing  it."  {a)  "  The  master  is  responsible  for  the  [447] 
acts  of  his  servant,  and  that  person  is,  without  doubt, 
liable  who  stands  in  the  relation  of  master  to  the  wrong- 
doer ;  .  .  .  who  has  selected  him  as  his  servant  from 
the  knowledge  and  belief  in  his  skill  and  care,  and  who 
can  remove  him  for  misconduct,  and  whose  orders  he  is 
bound  to  receive  and  obey."  (l?) 

Moreover,  though  in  some  cases  "  it  is  laid  down  that 
the  plaintiff  is  bound  to  show  that  the  act  of  which  he 
complains  is  done  by  the  authority,  express  or  implied 
of  the  [master],  the  criterion  is  not  whether  the  master 
has  given  the  authority  to  the  servant  to  do  the  particular 
act,  but  whether  the  servant  does  it  in  the  ordinary 
course  of  his  employment."  (c)  It  is,  in  fact,  to  be 
specially  noted  that  the  employer's  liability  does  not 
depend  upon  his  ordering  the  particular  act ;  for  he  may 
be  responsible,  even  though  he  forbid  it ;  {d)  and  the 
cause  of  this  extended  liability  seems  to  be,  that  if  an 
employer  were  not  made  responsible  for  wrongs  com- 
mitted in  his  service  the  injured  person  would  be  con- 
stantly without  remedy,  (e) 

It  has  been  maintained  that  fraud  stands  in  a  different 
position  from  other  torts,  and  that  an  employer  is  not 
liable  to  be  sued  for  the  fraud  of  his  agent  unless  he  has 
authorized  the  particular  fraudulent  representation  com- 
plained of.  (/)     But  though  this  view  may  be  supported 

(c)  Smith,  Master  and  Servant,  2ntl  ed.,  183,  i?4. 
(a)  Duncan  v.  Findlatcr,  6  CI.  &  Fin.  894,  per  Lord  l^ROOM. 
(/')  Quarman  v.  I'.urnctt,  6  M.  &  W.  4()9,  per  CURIAM. 
(<■)  Seymour  v.  Greenwood,  30  L.  J.  192,  Ex.,  per  Martin,  B. 
(</)  Lipus  V.  London   General    Omnibus  Co.,  I  IL  &   C.  526  ;  32    L.  J.  34, 
Ex.  (Ex.  Ch.). 

{e)  Ibid.,  32  L.  J.  46.  Ex.  (Ex.  Ch.),  judgment  of  Wiu.F.s,  J. 
(/)  Set  I'.cnjamin,  Sale,  350;  r,.rnf....i  v    K..wks,  6  M.&  W.  358  ;  Udell  ▼ 
30 


i66  PARTIES     TO    ACTIONS. 

by  good  authority,  the  better  opinion  seems  to  be  that 
"  with  respect  to  the  question  whether  a  principal 
[448]  is  answerable  for  the  act  of  his  agent  in  the  course 
of  his  master's  business  and  for  his  master's  benefit, 
no  sensible  distinction  can  be  drawn  between  the  case  of 
fraud  and  the  case  of  any  other  wrong.  The  general 
rule  is  that  the  master  is  answerable  for  every  such  wrong 
(^f  the  servant  or  agent  as  is  committed  in  the  course  of 
the  service,  and  for  the  master's  benefit,  though  no  express 
command  or  privity  of  the  master  be  proved.  ...  In 
all  [the]  cases  [in  which  the  master  has  been  held  liable], 
it  may  be  said  that  the  master  has  not  authorized  the  act. 
It  is  true  he  has  not  authorized  the  particular  act,  but  he 
has  put  the  agent  in  his  place  to  do  that  class  of  acts,  and 
he  must  be  answerable  for  the  manner  in  which  the  agent 
has  conducted  himself  in  doing  the  business  which  it  was 
the  act  of  his  master  to  place  him  in."  {g) 

One  peculiarity  in  the  nature  of  fraud  must,  however, 
be  taken  into  account,  which  is,  that  since  to  constitute 
fraud  there  must  exist  both  a  statement  untrue  in  itself 
and  knowledge  on  the  part  of  the  person  who  makes  it  of 
its  untruth,  or  at  any  rate  absence  of  belief  in  its  truth,  it 
may  happen  that  where  a  false  representation  is  made  by 
an  agent,  the  agent  who  makes  the  untrue  statement 
believes  it  to  be  true,  whilst  the  principal  who  knows  it  to 
be  false,  has,  though  employing  the  agent  to  transact  his 
business,  not  authorized  or  intended  him  to  make  the 
particular  %  statement.  Under  these  circumstances,  the 
principal  can  not  be  made  liable  for  the  fraud  by  combin- 
ing his  knowledge  with  the  act  of  the  agent,  iji)  But 
here  there  is  no  real  exception  to  the  rule  that  an  employer 
IS  liable  for  torts  committed  by  his  servant  in  the  course 
of  his  employment.  The  reason  why  the  principal  can 
not  be  sued  is  that  it  is  "  impossible  to  sustain  a  charge  of 

Atherton,  7  H.  &  N.  172  ;  30  L.  J.  337.  Ex.  ;  Western  Bank  of  Scotland  v. 
Addie,  L.  R.  i,  Sc.  App.  745.  See,  further,  as  to  the  liability  of  a  corporation 
for  fraud.  Chapter  XXVIII." 

ig)  Barwick  v.  English  Joint  Stock  Bank  L.  R.  2,  Ex.  265-267  (Ex  Ch.) 
per  Curiam. 

(/4)  Cornfoot  v.  Fowke,  6  M.  &  W.  358. 


PRIXCIPAL     AXD    AGENT.  467 

fraud  when  neither  principal  nor  agent  has  committed 
any, — the  principal  because,  though  he  knew  the  fact,  he 
was  not  cognizant  of  the  misrepresentation  being 
made,  nor  even  directed  the  agent  to  make  it ;  and  [449] 
the  agent,  because,  though  he  made  a  misrepresenta- 
tion, yet  he  did  not  know  it  to  be  so  at  the  time  when  he 
made  it."  (z) 

A  master's  liability  is  not  diminished  by  the  fact  that 
the  servant  who  commits  a  tort  has  been  appointed,  not 
by  the  master  directly,  but  indirectly  through  the  inter- 
vention of  an  agent,  e.  g.,  a  steward.  In  order  to  make 
P.  liable  for  A.'s  acts  as  his  servant,  it  is  necessary  to 
establish,  first,  that  A.  was,  at  the  time  of  committing  the 
act  complained  of,  P.'s  servant ;  secondly,  that  the  act  w^as 
done  in  the  course  of  A.'s  employment  as  P.'s  servant. 

\st  Qiiestion. — Was  the  servant  the  defendant's  servant? 
*'  The  law  does  not  recognize  a  several  liability  in  tw^o 
principals  who  are  unconnected.  If  they  are  jointly 
liable  you  may  sue  either,  but  you  can  not  have  two  sep- 
arately liable."  {k)  P.  and  M.,  that  is  to  say,  may  be 
joint  employers  of  A.  (/)  in  which  case  they  may  be  sued 
either  jointly  or  separately  for  torts  committed  by  A.  in 
their  service.  But  if  ^.  and  M.  are  unconnected,  any 
act  done  by  A.  will  be  considered  done  in  the  service 
cither  of  P.  or  of  M.,  as  the  case  may  be,  but  the  same 
act  will  not  be  considered  as  done  in  the  service  both  of 
P.  and  of  M.  It  was,  for  instance,  at  one  time  doubted 
whether  the  coachman  who  drives  a  hired  carriage  is  the 
servant  of  the  owner  of  the  carriage,  or  of  the  hirer,  and 
it  was  laid  down  that  "  he  is  the  servant  of  one  or  the 
other,  but  not  the  servant  of  one  and  the  other.  You 
must  bring  your  action  either  against  the  principal  or 
against  the  coachman  who  commits  the  injury,  but  you 
can  not  bring  it  against  the  owner  and  [against]  the  hirer 
of  the   carriage."    (;//)      It    is    now    settled   («)   that    the 

( 1  )  Comfoot  V.  Fowke,  6  M.  &  \V.  358,  372,  per  Ai.dkrso.n,  B. 

(k)  Laugher  v.  Pointer,  5  li,  &  C.  547.  559.  P"  Ci'RiAM. 

(/)  Chapter  XXVII. 

(m)   I,aii(,'hcr  v.  Pointer,  5  P..  &  C.  556.  per  LlTll.l.UALE.  J. 

(«)  Quarman  v.  P.urTiett,  6  M.  &  W.  491;. 


468  PARTIES     TO    ACTIONS. 

[450]  owner,  and  not  the  hirer,  of  the  carriage  is  the 
master  of  the  coachman,  and  that  therefore  the 
owner,  and  not  the  hirer,  is  liable  for  damage  caused  by 
the  coachman's  negligent  driving  ;  {o)  assuming,  of  course, 
that  the  coachman  is  supplied  by  the  person  who  lets  the 
carriage,  for  if  the  hirer  supplies  the  coachman,  he  is  his 
master,  and  liable  for  his  negligence. 

The  principle  on  which  the  question  under  considera- 
tion must  be  answered  is,  it  seems,  that  A.  is  the  servant 
of  the  person  by  whom  he  can  be  dismissed,  and  not  of 
the  person  who  employs  and  may  even  pay  him,  but  has 
no  powder  to  dismiss  him.  This  may  be  the  case  with  ser- 
vants at  hotels.  They  frequently  receive  no  wages  from 
the  innkeeper,  but  trust  entirely  to  what  they  receive  from 
the  persons  who  resort  to  the  hotel,  yet  they  are  not  the 
less  the  servants  of  the  innkeeper.  (/ ) 

Contractor  s  servants  not  servants  of  employer. — A  person 
who  employs  another  (commonl)-  called  a  contractor) 
to  perform  any  service  for  him,  e.  g.,  build  a  house,  is 
not  the  employer  of  the  contractor's  workmen  or  other 
servants,  and  is  therefore,  as  a  general  rule,  not  liable 
for  torts  committed  by  them.  Where,  for  instance,  a 
company  employed  a  contractor  to  build  a  viaduct,  and  a 
man  was  killed,  owing  to  negligence  on  the  part  of  the 
contractor's  workmen,  the  company,  though  it  had  re- 
served to  itself  the  power  to  dismiss  incompetent  w^ork- 
men,  if  the  contractor  should  employ  them,  was  never- 
theless held  not  to  be  liable,  {q)  So,  where  a  butcher 
bought  a  bullock  in  Smithfield  Market,  and  employed  a 
licensed  drover  to  drive  it  home,  and  the  drover  employed 
a  boy  through  whose  negligence  the  bullock  injured  the 
plaintiff's  property,  the  butcher  was  held  not 
[451]  liable,  (r)  A  builder,  employed  to  make  alterations 
at  a  club-house,  including  the  fixing  of  certain  gas- 
fittings,  made  a  sub-contract  with  a  gasfitter   to  do  this 

{o)  Quarman  v.  Burnett,  6  M.  &  W.  +99. 

(/)  See  Laugher  v.  Pointer,  5  K.  &  C.  556,  judgment  of  LiTTLEDALE,  J. 
\q)  Reedie  v.  London  and  North-Western  Rail.  Co.,  4  Ex.  244  ;  20  L.  J.  65 
Ex. 

(r)  Milligan  v.  Wedge,  12  A.  &  E.  737. 


PRINCIPAL    AND    AGENT.  469 

work.  Through  the  negligence  of  the  gasiitter,  or  his 
servants,  the  gas  exploded,  and  caused  damage.  It  was 
held  that  the  builder  was  not  liable  to  be  sued-  for  it.  {s) 
Commissioners  of  navigation,  who  entered  into  a  contract 
with  a  person  that  he  should  do  certain  works,  were  held 
not  responsible  for  an  injury  arising  from  the  imperfect 
performance  of  part  of  those  works,  {t)  Again,  where 
certain  commissioners  contracted  with  a  contractor  to 
pave  a  district,  and  the  contractor  contracted  with  M.  to 
lay  down  a  certain  portion  of  the  pavement,  and  M.'s 
workmen  left  some  stones  at  night,  so  as  to  constitute  a 
public  nuisance,  it  was  held  that  a  person  injured  in  fall- 
incr  over  the  stones  could  not  sue  the  contractor,  as  the 

o 

injury  was  not  caused  by  his  workmen.  {71) 

An  employer  remains  liable  in  the  following  cases :  {x) 
Case  I.— The  employer  is  liable  when  he  personally 
interferes  wnth  the  contractor's  workmen,  {y) 

Case  2.— The  employer  is  liable  when  the  act  con- 
tracted to  be  done  is  in  itself  unlawful ;  {s)  for,  "  if  the 
contractor  does  that  which  he  is  ordered  to  do,  it  is  the 
act  of  his  employer.  In  those  cases  in  which  nothing  was 
ordered  except  that  which  the  party  giving  the  order 
had  a  right  to  order,  and  the  contract  was  '.o  do  what 
was  legal,  .  .  .  the  employer  has  been  [held]  properly 
not  liable  for  what  the  contractor  did  negligently,  the 
relation  of  master  and  servant  not  existmg.  But  where 
an  employer  employs  a  contractor  to  do  that  which 
was  unlawful,  and  an  act  done  in  consequence  of  [452] 
such  employment  is  the  cause  of  the  injury  for 
which  an   action  is  brought,"  («)  the  employer  is  liable; 

is)  Rapson  v.  Cubitt,  9  M.  &  W.  710. 

(/)  Allen  V.  Haywanl,  7  Q.  B.  >/)o  ;   15  L.  J.  90-  Q-  ''■ 

iu)  Overton  v.  Freeman,  11  C.  B.  ?>(>1  \  21  L.J.  52.  C.  V.  Sec.  further, 
Smith,  M.i8ter  and  Servant.  2nfl  ed..  200,  201. 

(x)  Ellis  V.  .Sheffii-Id  Gas  Co.,  23  L.  j.  45.  Q-  B..  judiiment  of  Camphki.l, 
C.J. 

(  r)  lUirgess  v.  Gray,  5  C.  B.  57S  ;  14  I-  J-  184.  C.  P. 

(«)  Peachy  v.  Row'land,  13  C.  B.  182  ;  22  L.  J.  81,  C.  P.  ;  KUis  v.  ShcfTield 
Gas  Co..  2  E.  &  B.  767  :  23  I..  J.  42,  Q.  B. 

(a)  Ellis  V.  Sheffield  Gas  Co.,  23  L.  J.  43.  Q-  I'-.  j"(lg'iicMt  of  Campbei.i, 
C.J. 


470  PARTZ/^S     TO    ACTIONS. 

for  this  is  sinij^ly  the  case  of  one  person  employing  anothei 
to  do  an  unlawtul  act,  and  it  is  possible  to  distin<^uish  it 
from  cases  in  which  an  employer  has  been  held  not  liable 
tor  acts  done  by  a  contractor  not  in  accordance  with  his 
contract.  (J))  A  company,  for  examj)le,  contracted  with  a 
contractor  to  lay  gas  pipes  for  their  m  the  streets  of 
Sheffield,  without  having  any  speci-f  powers  for  that 
purpose.  His  workmen  left  a  pile  of  stones  in  the  street, 
over  which  the  plaintiff  fell,  and  was  injured.  The  com- 
pan)-  was  held  liable  to  an  action  by  the  plaintiff,  {c) 

Case  3. — An  employer  is  liable  when  the  damage  com- 
plained of  arises  from  the  act  itself  which  the  contractor 
is  ordered  to  do. 

A  railwa}^  company  was  empowered  to  build  a  bridge 
over  a  river,  and  employed  a  contractor,  who  built  a 
bridge  which  obstructed  the  navigation.  The  plaintiff's 
vessels  were  thereby  prevented  from  navigating  the  river. 
The  company  were  held  liable  in  an  action  by  the  plain- 
tiff. "  When  one  comes  to  consider  the  exact  distinction 
between  this  case  [and  other  cases],  there  is  some  little 
difficulty  in  deciding  it.  .  .  .  The  real  distinction  is 
that  where  an  accident  happens  by  reason  of  the  negli- 
gence of  the  servant  of  a  contractor,  so  as  to  cause  injury 
to  a  third  person,  that  being  a  matter  entirely  collateral 
to  that  which  the  contractor  had  contracted  to  do,  there 
the  liability  turns  on  the  relation  of  master  and  servant ; 
but  where  the  thing  to  be  done  is  the  thing  that  causes 
the  mischief,  and  the  mischief  can  only  be  said  to  arise 
without   the   direct   authority   of    the    person    ordering, 

because  the  thing  has  been  imperfectly  done, 
[453]    in  other  words,  where  the  injury   arises  from  the 

imperfectly  doing  the  thing  ordered  to  be  done, 
there  the  part}'  giving  the  order  becomes  responsible. 
That  is  the  distinction.  The  present  defendants  ordered 
a  bridge  to  be  constructed  across  a  navigable  river.  They 
were  authorized  to  take  land  for  the  purpose,  and  to  throw 
a  bridge  across  the  river,  but  the  bridge  was  to  be  sc 

{b)  Ibid.,  judgment  of  Camphkll,  C.  J  ,  and  Erle,  J. 
(c)  Ibid.,  2  E.  &  15.  767 ,  23  L.  J.  42,  Q.  H. 


PRIXCIPAL    AND    AGENT.  471 

built  as  not  to  interfere  with  the  navigation.  If  thev  put 
a  bridge  that  did  interfere  with  the  navigation  they  would 
be  liable.  .  .  .  They  ordered  the  contractor  to  build 
the  bridge,  and  when  built,  it  turns  out  to  be  ill  con- 
structed. Does  this  appear  at  all  different  from  the  case 
where  a  man  puts  up  a  structure,  upon  his  land,  which 
structure,  when  put  up,  injures  some  one  ?  .  .  .  The 
man  who  orders  the  structure  is  liable,  and  it  is  no  answer 
to  say,  I  ordered  it  to  be  put  up  in  a  way  which  should 
cause  no  injury.  In  that  case,  as  in  this,  the  very  thing 
done,  though  imperfectly  done,  has  been  ordered  to  be 
done,  and  the  injury  has  arisen  from  the  thing  so  imper- 
fectly done."  {d)  "  Where  a  thing  is  in  itself  a  nuisajice, 
and  must  be  prejudicial,  the  party  who  emploj's  another 
to  do  it  is  responsible  for  all  the  consequences  that  may 
have  arisen.  But  when  mischief  arises,  not  from  the  thing 
itself,  but  from  the  mode  in  which  it  is  done,  then  the  per- 
son ordering  it  is  not  responsible  unless  the  relation  of 
master  and  servant  can  be  established,"  {e)  which,  as 
between  the  employer  and  the  contractor's  servants,  it  can 
not  be. 

Case  4. — The  employer  is  liable  when  the  contractor 
is  entrusted  with  the  performance  of  a  duty  incumbent 
upon  the  employer,  and  omits  to  perform  it. 

P.  employed  a  coal  merchant  to  put  some  coals  through 
a  trap-door,  which  P.  was  bound  not  to  keep  open  in  a 
way  dangerous  to  the  public.  Through  the  negli- 
gence of  the  coal  merchant's  servants  it  was  left  [454] 
open,  and  the  plaintiff  T.  fell  through  it,  and  was 
injured.  P.  was  held  liable  for  the  injury  on  the  follow- 
ing grounds  :(/)  The  rule  tliat  an  eniplovcr  is  not  liable 
for  the  acts  of  the  contractor's  servants  is  inapplicable  to 
"cases  in  which  the  contractor  is  entrusted  with  the  i)er- 
fcrmance  of  a  duty  incumbent  upon  his  c'mj)Io\cr,  and 
neglects  its  fulfillment,  whereby  an  injury  is  occasioned. 
Now,  in  tiie  i)rescnt  case,  the  defendant  employed  the  coal 

V)  Hole  V.  Siltinfjhourne  Rail.. Co.,  30  L.  J.  86,  Ex.,  ju(l;^mcnt  of  Wii.de,  H. 
<)  Bntlcrv.  Hunter,  31  I,.  J.  214,  Ex.,  esp.  217,  judgment  of  Pollock,  C  B. 
/)   I'ick.-irfl  V.  Smith,  10  (' .  15.,  N.  ,S.,  470. 


A7-2  PARTIES     TO    ACTIONS. 

merchant  to  open  a  trap  in  order  to  put  in  the  coals  and 
he  trusted  him  to  guard  it  whilst  (vien,  and  to  close  it  when 
the  coals  were  all  put  in.  The  act  of  opening  it  was  the 
act  of  the  employer,  though  done  through  the  agency  of 
the  coal  merchant  ;  and  the  defendant,  having  hereby 
caused  danger,  was  bound  to  take  reasonable  means  to 
prevent  mischief.  The  performance  of  this  duty  he 
omitted,  and  the  fact  of  his  having  entrusted  it  to  a  person 
who  also  neglected  it,  furnishes  no  excuse  either  in  good 
sense  or  law."  {g) 

P.  was  empowered  by  statute  to  make  a  dram,  and 
emplo)'ed  a  contractor  to  make  it.  The  ground  was  filled 
up  so  negligently  that  it  subsided  and  left  a  hole,  into 
which  T.  the  plaintiff  fell,  and  was  injured.  It  was  held 
by  the  Queen's  Bench,  {h)  that  P.  was  not,  and  by  the 
Exchequer  Chamber  [i]  that  he  was,  liable  for  the  injury  ; 
the  ground  of  his  liability  being  that  "  he  was  bound  to 
see  that  the  opening  should  be  properly  closed,  and  that 
the  omission  to  perform  his  duty  |  was]  not  excused  by  the 
omission  of  the  agent  whom  the  defendant  had  employed 

to  act  for  him."  {k) 
[455]  2;^^  Question. — Was  the  act  complained  of  done 

in  the  course  of  the  servant's  employment?  A 
master  is  not  responsible  for  any  act  done  by  his  servant 
beyond  the  scope  of  his  employment,  or,  as  it  is  some- 
times less  happily  termed,  his  authority. 

"  The  master  is  liable,  even  though  the  servant,  in  the 
performance  of  his  duty,  is  guilty  of  a  deviation  or  failure 
to  perform  it  in  the  most  convenient  manner.     But  if  the 

(,?•)  Ibid.,  per  Curiam. 

(//)  Gray  v.  Pullen,  32  L.  J.  169,  Q.  B. 

(/)  Ibid.,  5  13.  &  S.  970,  981  ;  34  L.  J.  265.  Q.  B. 

(A)  Ibid.,  34  L.  J.  267,  per  Cuiu.\M. 

Doubts  have  been  expre.ssed  as  to  the  correctness  of  the  decision  in  this  case 
(Wilson  V.  Merry,  L.  R.  i,  Sc.  App.  341).  The  general  principle,  whether  cor- 
rectly applied  in  this  instance  or  not,  is,  it  is  conceived,  clear.  A  person  who 
employs  a  contractor  is  not  the  master  of  the  latter's  servants,  and.  therefore, 
incurs  no  liability  as  master.  But  every  one  is  responsible  for  anything  done, 
or  omitted  to  be  done,  under  his  orders.  Hence  an  employer  who,  through  a 
contractor,  does  a  thing  which  is  in  itself  unlawful,  or  omits  to  do  a  thing  which 
he  is  by  law  bound  'o  do,  is  liable  'o  an  action  by  the  person  injured  by  his  acl 
or  omi.ssion. 


PRINCIPAL    AND    AGENT.  473 

servant,  instead  of  doing  that  which  he  is  employed  to 
do,  does  something  which  he  is  not  employed  to  do  at  all, 
the  master  can  not  be  said  to  do  it  by  his  servant,  and 
therefore  is  not  responsible  for  the  negligence  of  his 
ser\^ant  in  doing  it."  (/)  "  The  distinction  [as  applied  to 
a  particular  case]  is  this :  if  a  servant,  driving  a  carriage, 
in  order  to  effect  some  purpose  of  his  own,  wantonly 
strike  the  horses  of  another  person,  and  produce  the  acci- 
dent, the  master  will  not  be  liable.  But  if,  in  order  to 
perform  his  master's  orders,  he  strikes,  but  injudiciously, 
and  in  order  to  extricate  himself  from  a  difficulty,  that 
will  be  negligent  and  careless  conduct,  for  which  his  mas- 
ter will  be  liable,  being  an  act  done  in  pursuance  of  the 
servant's  employment,  {m) 

It  is  often  in  practice  difficult  to  decide  whether  the 
act  of  a  servant  has  or  has  not  been  done  in  the  course 
of  his  service,  and  whether,  therefore,  an  employer  is  or 
is  not  liable  for  it.  The  sort  of  difficulty  which  arises 
may  be  seen  from  the  following  examples  : 

A  coachman  drove  his  master,  and  though  ordered 
not  to  drive  fast,  did  so  ;  the  master  was  held  liable  for 
damage  caused  through  the  fast  driving ;  for  the 
coachman  was  driving  for  his  master,  though  driv-  [456] 
ing  badly,  in)  P.  and  Co.,  an  omnibus  compan}', 
employed  A.  as  the  driver  of  an  omnibus.  A.  had  express 
orders  from  his  employers  not  to  obstruct  other  omni- 
buses, or  annoy  their  drivers.  A.,  however,  drove  his 
omnibus  purposely  in  front  of  the  plaintiff's  omnibus,  so 
as  to  obstruct  it,  and  thereby  caused  an  accident.  Though 
A.  said  that  he  had  done  it  on  purpose,  and  to  serve  the 
plaintiff's  driver  as  he  had  served  A.,  yet  it  was  hckl  that 
if  the  driver,  being  irritated,  acted  carelessly,  wantonly, 
or  maliciously,  but  in  the  course  of  his  cmploymoiit,  and 
in  d(jing  that  which  he  believed  to  be  for  the  interest  of 
his  employers,  then  they  were,  in  spite  of  their    orders, 


(/)   Mitchell  V.  Craswelk-r,  13  C.  l!.  237;  22   I,.  J.  i(X),  C.  P.,  per  Mai.LE,  J, 
{m    Croft  V.  Alison,  4   R.  &  Aid.  590. 

(«)  Smith,  .Master  and  Servant,  and   cd.,  19I  ;  Slcath  v.  Wilson,  q  C.  &   P 
612 


474  PARTIES     TO    ACTIONS. 

responsible  for  his  act ;  {o)  for,  "  if  a  master  emplo3^s  a 
servant  to  drive  and  manage  a  carriage,  the  master  is 
answerable  for  anv  misconduct  of  the  servant  in  drivinor 
or  managing  it,  which  can  fairly  be  considered  to  have 
rcsnltcd  from  the  performance  of  the  functions  entrusted 
to  him,  and  especially  if  he  was  acting  for  his  master's 
benefit  and  not  for  anv  purpose  of  furthering  his  own 
interest,  or  for  any  motive  of  his  own  caprice  or  inclina- 
tion." (/>)  "A  master,"  it  is  added  by  Blackburn,  J., 
"  is  responsible  for  the  act  of  his  servant,  even  if  it  be 
willful,  reckless,  or  improper,  provided  the  act  is  the  act 
of  the  servant  in  the  scope  of  his  employment,  and  in 
executing  the  matter  for  which  he  was  engaged  at  the 
time."  {q)  Where  again,  A.,  the  conductor  of  an  omni- 
bus, removed  T.,  a  passenger,  under  circumstances  which 
justified  him  in  removing  him,  but  with  such  carelessness 
that  T.  was  injured.  P.,  his  employer,  was  held  liable;  {r) 
"  the  true  criterion  being,  not  whether  the  act  of  his  ser- 

vant  is  a  trespass,  for  in  the  greater  number  of 
[457]    actions  against  masters  for  acts  of  their  servants, 

for  which  the  masters  are  held  liable,  the  servants 
are  trespassers,  but  whether  the  act  of  the  servant  is  will- 
tul  and  malicious,  in  the  latter  case  the  master  will  not 
be  held  liable."  {s)  So  a  master  was  held  liable  for  dam- 
age caused  by  the  negligent  driving  of  his  cart  in  the  city 
by  his  servant,  although  it  was  proved  that  the  cart 
ought  not,  in  carrying  out  his  orders,  to  have  been  in  the 
city  at  all.  (/)  An  attorney,  again,  has  been  held  liable  to 
pay  costs  occasioned  by  his  clerk  simulating  the  seal  of 
the  court  upon  a  writ,  {u) 

On  the  other  hand,  in  the  following  cases  employers 
have  been  held  not  liable,  on  the  ground  that  the  acts  of 

{0)  Limpus  V.  London  General  Omnibus  Co.,  32  L.  J.  34,  Ex.  (Ex.  Ch.). 

(/)  Ibid.,  39,  judgment  by  Williams,  J. 

{q)  Ibid.,  41,  judgment  cf  Blackisurn,  J. 

(>-)  Seymour  v.  Greenwood,  6  H.  &  N.  359  ;  30  L.  J.  189.  Ex.  ;  7  H.  &  N. 
355  ;  30  L.  J.  327,  Ex.  (Ex.  Ch.). 

(j)  Seymour  v.  Greenwood,  30  L.  J.  192,  Ex.,  judgment  of  Mahtin,  R. 

(/)  Joel  V.  Morrison,  6  C.  &  P.  501.  See  Whatman  v.  Pearson,  L.  R.  3.  C.  P 
422. 

(«)  Dunkley  v.  Ferris,  11  C.  B.  457. 


PRINCIPAL    AND    AGENT.  475 

their  servants  were   beyond  the  scope  of  their  employ, 
ment. 

P.'s  servant  had  finished  the  business  of  the  day,  and 
without  P.'s  leave  or  knowledge,  di'ove  P.'s  horse  and  cart 
to  the  railway  station  in  order  to  take  a  fellow- workman 
there,  and  an  accident  occurred  on  his  way  back.  P.  was 
held  not  to  be  liable.  (,r)  For  "  the  servant  here  did  some- 
thing contrary  to,  and  inconsistent  with,  his  master's  busi- 
ness [and]  the  journey  to  the  station  had  no  connection 
with  it  whatever."  {y)  "  The  servant  was  acting,  and 
knew  that  he  was  acting,  contrary  to  his  trust,  and  to  his 
master's  employment."(^)  P.,  a  wine  merchant,  sent  A.,  his 
carman,  and  also  M.,  his  clerk,  with  a  cart,  to  deliver  some 
wine  and  to  bring  back  some  empty  bottles.  A.,  on  their 
return,  was  induced  by  M.  not  to  drive  home  to  P.'s  offices, 
but  in  quite  another  direction,  on  business  of  M.'s.  While 
A.  was.  thus  driving,  an  accident  happened  through  his 
negligence.  It  was  held  that  P.  was  not  liable."  {a) 
"  The  true  rule,"  said  Cockburn,  C.  J.,  "  is  that  [458] 
the  master  is  only  responsible  so  long  as  the  servant 
can  be  said  to  be  doing  the  act  in  the  doing  of  which  he  is 
guilty  of  negligence,  in  the  course  of  his  employment  as 
servant.  I  am  very  far  from  saying  if  the  servant  when 
going  on  his  master's  business  took  a  somewhat  longer 
road,  that  owing  to  this  deviation  he  would  cease  to  be  in 
the  employment  of  the  master  so  as  to  divest  the  latter 
of  all  liability  ;  in  such  cases  it  is  a  question  of  degree 
as  to  how  far  the  deviation  could  be  considered  a  separate 
journey.  Such  a  consideration  is  not  applicable  to  the 
present  case,  because  here  the  carman  started  on  an 
entirely  new  and  independent  journey,  which  liad  nothing 
at  all  to  do  with  his  employment."  (b)  So  a  master  was 
held  not  to  be  liable  when  his  servant,  who  was  authorized 
to  distrain  cattle  doing  damage  on  his  niaster's  land,  dnwe 
th-i  plaintiff's  horses,  which  were  on  the  highway,  on  to 

{x)  Mitchell  V.  Cra.wcllcr,  13  C.  B.  237  ;  22  L.  J.  loo.  C.  P. 
0')  Ibid.,  22  L.  J.  103,  Q.  1!.,  jiulgim-nl  of  MaUI.k.  J. 
(«)  Ibid.,  104,  jud'^mcnl  of  CKKSwiiLI,,  J. 
la)  Story  v.  Ashton.  L.  R.  4.  Q.  P..  Al^^- 
[b)  Ibid..  479,  per  CoCKliURN,  C.  J. 


476  PARTIES     TO    ACTIONS. 

his  master's  land,  and  there  distrained  them,  for  his   act 
was  not  within  the  scope  of  his  authority,  {c) 

Employer  not  responsible  for  servant's  mistake  of  law. — 
It  can  not  be  assumed  from  the  mere  fact  of  a  master 
employing  a  servant,  that  he  has  empowered  him  to  do 
acts  which  the  master  himself  is  not  competent  to  per- 
form. Hence  it  has  been  held,  that  an  employer  is 
responsible  for  the  wrongful  acts  of  his  servant  when  they 
arise  from  a  mistake  of  fact,  but  is  not  responsible  for 
them  when  they  arise  from  a  mistake  of  law  on  the  servant's 
part.  A.,  the  servant  of  a  railway  company,  arrested 
T.  under  circumstances,  which  if  his  view-  of  the  facts 

had  been  correct  would  have  justified  the  arrest : 
[459]   the  company  were  held  responsible  for  the  assault. 

{d)  But  where  A.,  the  servant  of  a  railway  company, 
took  a  mistaken  view  of  the  law,  and  hence  arrested  T. 
under  circumstances  which  would  under  no  view  of  the 
facts  have  justified  the  arrest,  the  company  were  held  not  to 
be  liable,  {e)  "  In  this  case  an  act  was  done  by  the  station- 
master  completely  out  of  the  scope  of  his  authority,  which 
there  can  be  no  possible  ground  for  supposmg  the  railway 
company  authorized  him  to  do.  Having  no  power  them- 
selves, they  can  not  give  the  station-master  any  power  to 
do  the  act;  therefore  the  wrongful  imprisonment  is  an 
act  for  which  the  plaintiff,  if  he  has  a  remedy  at  all,  has  it 
against  the  station-master  personally,  but  not  against  the 
railway  company."  (/)  "  If  the  station-master  had  made 
a  mistake  in  committing  an  act  which  he  was  authorized 
to  do,  .  .  .  the  company  would  be  liable,  because  it 
would  be  supposed  to  be  done  by  their  authority.  Where 
the  station-master  acts  in  a  manner  in  which  the  company 
themselves  would  not  be  authorized  to  act,  and  under  a 

(c)  Lyons  v.  Martin,  8  A.  &  E.  512.  As  to  a  servant's  authority  to  contract 
arising  from  the  course  of  his  employment,  see  Walker  v.  Great  Western  Rail, 
Co.,  L.  R.  2,  Ex.  228  ;  Cox  v.  Midland  Counties  Rail.  Co.,  18  L.  J.  65,  Ex. ;  3 
Exch.  268.  For  further  examples  of  a  master's  liability  for  torts  committed  by 
his  servant,  see  Smith,  Master  and  Servant,  2nd  ed.,  188-194. 

(d')  Goff  V.  Great  Northern  Rail.  Co.,  30  L.  J.  148,  Q.  U-  ;  3  E.  &  B.  672. 

(<f)  Poulton  V.  London  and  South-Western  Rail.  Co.,  L.  R.  2,  Q.  B.  534;  36 
L.  J.  294.  Q.  B. 

(/■)  Ibid.,  L.  R.  2,  Q.  B.  540,  judgment  of  Blackburn,  J. 


PRINCIPAL    AND    AGENT.  477 

mistake  or  misapprehension  of  what  the  law  is,  .  .  . 
the  rule  is  very  different,  and  .  .  .  that  is  the  dis- 
tinction on  which  the  whole  matter  turns."  {g) ' 

Exception  i. — Where  servant  injured  by  fellow-servant. 

A  master  is  not  in  general  liable  to  an  action  at  the 
suit  of  a  servant,  for  an  injury  done  to  him  by  a  fellow- 
servant  in  the  course  of  their  common  employment ;  (//) 
and  a  person  who  volunteers  to  assist  a  servant  in 
his  work  is  in  the  same  position  as  a  servant  in  [460] 
respect  of  the  right  of  action  against  the  master,  (z ) 

"  It  must  be  considered  as  conclusively  settled,  that 
one  fellow-servant  can  not  recover  for  injuries  sustained 
in  their  common  employment  from  the  negligence  of  a 
fellow-servant,  unless  such  fellow-servant  is  shown  to  be 
either  an  unfit  or  improper  person  to  have  been  employed 
for  the  purpose."  [k)  "  The  principle  [on  which  the 
exemption  of  the  master  rests]  is  that  a  servant  who 
engages  for  the  performance  of  services  for  compensation 
.  .  .  does,  as  an  implied  part  of  the  contract,  take  upon 
himself  as  between  himself  and  his  master,  the  natural 
risks  and  perils  incident  to  the  performance  of  such  ser- 
vices, the  presumption  of  law  being  that  the  compensa- 
tion was  adjusted  accordingly,  or,  in  other  words,  that 
these  risks  are  considered  in  his  wages ;  and  that  where 
the  nature  of  the  service  is  such  that,  as  a  natural  incident 
to  the  service,  the  person  undertaking  it  must  be  exposed 
to  risk  of  injury  from  the  negligence  of  other  servants  of 
the  same  employer,  this  risk  is  one  of  the  natural  perils 
which  the  servant  by   his  contract  takes  upon  himself  as 

{g)  Ibid.,  juflgment  of  Mi:i,i,or,J. 

(//)  Feltliam  v.  England,  L.  R.  2,  Q.  15.  33  ;  36  L.  J.  14,  Q.  B.  ;  Morgan  v 
Vale  of  Nealh  Rail.  Co.,  33  I,.  J.  260,  Q.  U. ;  L.  R.  i,  Q.  15.  149  ;  35  L.  J.  23 
Q.  B.  (Ex.  Ch.)  ;  Bullen,  I'lcadings,  3rd  cd.,  362  ;  and  see  Smith,  Master  and 
Servant,  2nd  ed.,  134-153. 

(0  Dtgg  V.  Midland  Rail.  Co.,  i  H.  &  N.  773  ;  26  L.  J.  171,  Ex.  ;  Potter  v 
Faulkner,  i  B.  &  .S   800  ;  31  L.  J.  30,  Q.  B.  (Ex.  Ch.). 

{k)  Fcl.ham  v.  England,  L   R.  2,  Q.  15.  36,  per  Curiam. 

'  Wharton  on  Agency  and  Agents,  §  541. 


4/8  PARTIES     TO    ACTIONS. 

between  him  and  his  master ;(/)...  he  does  not 
stand  in  the  relation  of  a  stranger,  but  is  one  whose  rights 
are  regulated  by  contract  express." 

The  terms  a  common  employment,  or  a  common  ser- 
vice, do  not  admit  of  a  precise  definition,  (;«)  and  they  are 
used  in  a  wide  sense  ;  for  there  are  "  manv  cases  wdiere 
the  immediate  object  on  which  the  one  servant  is  employed 
is  very  dissimilar  from  that  in  which  the  other  is  employed, 
and  yet  the  risk  of  injury  from  the  negligence  of  the  one 
is  so  much  a  natural  and  necessarv  consequence  of  the 
employment  which  the  other  accepts  that  it  must 
[461]  be  included  in  the  risks  which  are  to  be  considered 
:n  his  wages."  {n) 

The  rule  is  not  altered  by  the  fact  that  the  servant 
guilty  of  negligence  is  a  servant  of  superior  authority 
whose  directions  the  other  is  bound  to  obey  ;  [o)  and  it 
applies  to  cases  where  the  immediate  object  on  which 
one  servant  is  employed  is  very  dissimilar  from  that  on 
which  the  other  is  employed.  (/)  On  the  other  hand,  the 
service  must  be  common,  that  is,  each  of  the  servants 
must  be  employed  by  the  same  ^master  ;  {q)  and  the  mas- 
ter is  not  exempt  from  liability  if  the  injury,  even  though 
immediately  caused  by  a  fellow-servant,  is  fairly  imputa- 
ble to  the  conduct  of  the  master  himself,  (r)  ' 


(t)  Morgan  v.  Vale  of  Neath  Rail.  Co.,  33  L.  J.  264,  Q.  B.,  judgment  of 
Blackburn,  J. 

(/«)  See  Barton.shill  Colliery  Co.  v.  Maguire,  3  McQ.  300. 

(«)  Morgan  v.  Vale  of  Neath  Rail.  Co.,  33  L.  J.  265,  Q.  B.,  judgment  of 
Blackburn,  J.  ;  Tunney  v.  Midland  Rail.  Co.,  L.  R.  i,  C.  P.  291. 

(p)  Feltham  v.  England,  L.  R.  2,  Q.  B.  33. 

{p)  Morgan  v.  Vale  of  Neath  Rail.  Co.,  L.  R.  i,  Q.  B.  149. 

{q)  Warburton  v.  Great  Western  Rail.  Co.,  L.  R.  2,  Ex.  30. 

(r)  Morgan  v.  Vale  of  Neath  Rail.  Co..  J3  L.  J.  265,  Q.  B.,  judgment  of 
Bl.\ckburn,  J. 

I.  An  extension  of  the  doctrine  servants  have  been  injured  through 
that  superior  servants  represent  the  negligence  of  fellow-servants, 
and  stand  in  the  place  of  the  em-  and  largely  increasing  the  number 
ployer  has  taken  place  in  the  late  of  those  by  whose  acts  parties  de- 
American  cases,  circumscribing  the  fendant  will  be  held  liable  to  action, 
exemption  from  liability  that  de-  If  the  superior  servant  has  com- 
fendants  have  enjoyed  when  their  mitted  to  him  the  virtual  and  sub- 


PRIX  CI  PAL     AND     AGENT. 


479 


Exception  2. — Where  the   master  is  compelled  to  employ  a 
particular  person. 

A  master  is  not  liable  for  the  acts  of  servants  when 
he  is  compelled  by  statute  to  employ  a  particular  per- 


stantial  control  of  the  business  and 
the  power  to  do  all  acts  necessary 
to  its  conduct,  he  is  vice-pripcipal. 
Willis  V.  Oregon  Ry.  &  Nav.  Co., 
II    Oreg.   257.     Or    if   the    master 
delegates  duties  which  the  law  im- 
poses on  him,  the  master  is  liable, 
■whatever  be  the  rank  of  the  ser- 
vant.   Copper.  V.  Louisville,  &c.,  R. 
Co.,  2  N.  E.  Rep.  749.     And  such 
a   superior   servant   is    any   whose 
orders  the  injured  servant  is  bound 
to  obey,  though  in  the  same  line  of 
employment.     Shultz    v.    Chicago, 
&c.,   R.  Co.,  4  N.  W.  Rep.  399; 
Berea  Stone  Co.  v.  Kraft,  31  Ohio 
St.  287  ;  Cowles  v.  Richmond,  &c., 
Ry.  Co.,  84  N.  C.  309;  Galveston, 
&c.,  Ry.  Co.  v.  Delahunty,  53  Tex. 
206  ;  Chicago.  &c.,  R.  Co.  v.  Mo- 
randa,  93  111.  302  ;  Devany  v.  Vul- 
can Iron  Works,  4  Mo.  App.  236 ; 
Gormly  v.  Vulcan  Iron  Works,  61 
Mo.  492;  Railroad  Co.  v.  Fort,  17 
Wall.    557 ;    Garraby     v.     Kansas 
City,  &:c.,  R.  Co.,  25  P'ed  Rep.  258. 
There  are  cases  which  hold  that  the 
master  is  not  responsible  even  for 
the  negligence  of  his  foreman  or 
superintendent,  but  the  current  of 
the  above  decisions  is  far  stronger 
and    is     founded     in    justice    and 
humanity.      In    the    case    of    the 
Chicago,  &c.,  R.  Co.  v.  Ross,  112 
U.  S.  377,  the  doctrine  is  authorita- 
tively carried  as  far,  perhaps,  as  it 
will  go,  and  Field,  J.,  has  strongly 
fortified  the  rule  with  reason  and 


given  it  clear  and  full  statement. 
He  says :  "  In  Farwell  v.  Boston, 
&c.,  R.  Co.,  4  Mete.  49,  an  engineer 
employed  by  a  railroad  company 
to  run  a  train  on  its  road  was  in- 
jured by  the  negligence  of  a  switch- 
tender  also  in  its  employ,  and 
it  was  held  that  the  company  was 
not  liable.  The  court  placed  the 
exemption  of  the  company,  not  on 
the  ground  of  Murray  v.  South 
Carolina  R.  Co  ,  i  McMul.  384, 
that  there  was  a  joint  undertaking 
by  the  fellow-servants,  but  on  the 
ground  that  the  contract  of  the 
engineer  implied  that  he  would 
take  upon  himself  the  risks  attend- 
ing its  pe:formance;  that  those 
included  the  injuries  which  might 
befall  him  from  the  negligence 
of  fellow-servants  in  the  same 
employment  and  that  the  switch- 
tender  stood  in  that  relation  to 
him.  And  the  court  added  that 
the  exemption  of  the  master  was 
supported  by  considerations  of 
policy.  '  Where  several  persons,' 
it  said,  'are  employed  in  the  con- 
duct of  one  common  enterprise  or 
undertaking,  and  the  safety  of  each 
depends  on  the  care  and  skill  with 
which  each  other  shall  perform  his 
appropriate  duty,  each  is  an  ob- 
server of  the  conduct  of  the  otliers  ; 
can  give  notice  of  any  misconduct, 
incapacity  or  neglect  of  duty,  and 
leave  the  service  if  the  common 
employer  will   not   t.ikc  such    pre- 


48o 


PA  K  TIES     TO    AC  TIONS. 


son,  (5)  the  o-ro..tKl  of  his  exemption  being,  independently 
of  statutory  provisions,  that  where  one  man  is  compelled 
bv  law  to  employ  another,  as  where  under  various  Mer- 

(s)  Smith,  Master  and  Servant,  2nd  ed..  205,  206. 


cautions  and  employ  such  agents 
as  the  safety  of  the  whole  party 
may  require.  By  these  means  the 
safety  of  each  will  be  much  more 
efifectually  secured  than  could  be 
done  by  a  resort  to  the  common 
employer  for  indemnity  in  case  of 
loss  by  the  negligence  of  each 
other.'  And  to  the  argument, 
which  was  strongly  pressed,  that 
though  the  rule  might  apply  where 
two  or  more  servants  are  employed 
in  the  same  department  of  duty, 
where  each  one  can  exert  some  in- 
fluence over  the  conduct  of  the 
other,  and  thus,  to  some  extent, 
provide  for  his  own  security,  yet 
that  it  could  not  apply  where  two 
or  more  are  employed  in  different 
departments  of  duty  at  a  distance 
from  each  other,  and  where  one 
can  in  no  degree  control  or  in- 
fluence the  conduct  of  another,  it 
answered  that  the  objection  was 
founded  upon  a  supposed  distinc- 
tion on  which  it  would  be  extremely 
difficult  to  establish  a  practical 
rule.  '  When  the  object  to  be  ac- 
complished,' it  said,  '  is  one  and 
the  same,  when  the  employers  are 
the  same  and  the  several  persons 
employed  derive  their  authority 
and  their  compensation  from  the 
same  source,  it  would  be  extremely 
difficult  to  distinguish  what  consti- 
tutes one  department  and  what  a 
distinct  department  of  duty.  It 
would  vary  with  the  circumstances 
of    every    case.'     And    it    added, 


'that  the  argument  rests  upon  an 
assumed  principle  of  responsibility 
which  does  not  exist.  The  master 
in  the  case  supposed  is  not  exempt 
from  liability  because  the  servant 
has  better  means  of  providing  for 
his  safety  when  he  is  employed  in 
immediate  connection  with  those 
from  whose  negligence  he  might 
suffer,  but  because  the  implied  con- 
tract of  the  master  does  not  extend 
to  indemnify  the  servant  against 
the  negligence  of  any  one  but  him- 
self, and  he  is  not  liable  in  tort  as 
for  the  negligence  of  his  servant, 
because  the  person  suffering  does 
not  stand  towards  him  in  the  rela- 
tion of  a  stranger  but  is  one  whose 
rights  are  regulated  by  contract, 
express  or  implied.'  4  Mete.  59, 
60.  The  opinion  in  this  case,  which 
was  delivered  by  Chief  Justice 
Shaw,  has  exerted  great  influence 
in  controlling  the  course  of  de- 
cisions in  this  country.  In  several 
slates  it  has  been  followed,  and  the 
English  courts  have  cited  it  with 
marked  commendation.  *  *  « 
Later  decisions  in  the  English 
courts  extend  the  master's  exemp- 
tion from  hability  to  cases  where 
the  servant  injured  is  working 
under  the  direction  of  a  foreman  or 
superintendent,  the  grade  of  service 
of  the  latter  not  being  deemed  to 
change  the  relation  of  the  two  as 
fellow-servants.  Thus,  in  Wilson 
V.  Merry,  L.  R.,  I  H.  L.  Sc.  326, 
decided  by  the  House  of  Lords  in 


PRINCIPAL    AND    AGENT. 


481 


chant  Shipping  Acts,  the  owner  of  a  ship  is  compelled  to 
take  a  particular  pilot,  viz.,  the  first  one  who  offers  him- 
self, he  is  not  liable  for  damage  caused  by  the   person 


1868,  on  appeal  from  the  Court  of 
Sessions  of  Scotland,  the  sub- 
manager  of  a  coal-pit,  whose  neg- 
ligence in  erecting  a  scaffold  which 
obstructed  the  circulation  of  air 
underneath  and  led  to  an  accumu- 
lation of  fire-damp  that  exploded 
and  injured  a  workman  in  the 
mine,  was  held  to  be  a  fellow-ser- 
vant with  the  injured  party.  And 
the  court  laid  down  the  rule  that 
the  master  was  not  liable  to  his 
servant  unless  there  was  negligence 
on  the  master's  part  in  that  which 
he  had  contracted  with  the  servant 
to  do,  and  that  the  master,  if  not 
personally  superintending  the  work, 
was  only  bound  to  select  proper 
and  competent  persons  to  do  so 
and  furnish  them  with  adequate 
materials  and  resources  for  the 
work  ;  that  when  he  had  done  this, 
he  had  done  all  that  he  was  re- 
quired to  do,  and  if  the  persons 
thus  selected  were  guilty  of  negli- 
gence it  was  not  his  negligence, 
and  he  was  not  responsible  for  the 
consequences.  In  this  case,  as  in 
many  others  in  the  English  courts, 
the  foreman,  manager  or  superin- 
tendent of  the  work  by  whose  neg- 
ligence the  injury  was  committed, 
was  himself  also  a  workman  with 
the  other  laborers,  although  exer- 
cising a  direction  over  the  work. 
The  reasoning  of  that  case  has 
been  applied  so  as  to  include,  as 
contended  here,  employees  of  a 
corporation  in  departments  sepa- 
rated from  each  other,  and  it  must 
31 


be  admitted  that  the  terms  '  com- 
mon employment,'  under  late  de- 
cisions in  England  and  the  deci- 
sions in  this  country  following  the 
Massachusetts  case,  are  of  very 
comprehensive  import.  It  is  diffi- 
cult to  limit  them  so  as  to  say  that 
any  persons  employed  by  a  rail- 
way company  whose  labors  may 
facihtate  the  running  of  its  trains, 
are  not  fellow-servants,  however 
widely  separated  may  be  their 
labors.  See  Holden  v.  Fitchburg 
Railroad  Co.,  129  Mass.  268. 

"  But  notwithstanding  the  num- 
ber and  weight  of  such  decisions, 
there  are  in  this  country  many  ad- 
judications of  courts  of  great  learn- 
ing restricting  the  exemption  to 
cases  where  the  fellow-servants  are 
engaged  in  the  same  department 
and  act  under  the  same  immediate 
direction,  and  holding  that  within 
the  reason  and  principle  of  the 
doctrine  only  such  servants  can  be 
considered  as  engaged  in  the  same 
common  employment.  It  is  not, 
hqwever,  essential  to  the  decision 
of  the  present  controversy  to  lay 
down  a  rule  which  will  determine, 
in  all  cases,  what  is  to  be  deemed 
such  an  employment,  even  if  it 
were  possible  to  do  so. 

"There  is,  in  our  judgment,  3 
clear  distinction  to  be  made  in  iheii 
relation  to  their  common  principal, 
between  servants  of  a  corporation 
exercising  no  supervision  ovei 
others  engaged  with  them  in  the 
same   employment   and   agents    o\ 


482 


PARTIRS     TO    ACTIONS. 


employed,  {t)  When  the  selection  of  the  person  to  be 
employed  is  left  to  the  master,  he  is  liable,  although 
his  choice  may  be  limited  by  law  to  a  particular 
class.  {71) 

(/)  See  General  Steam  Nav.  Co.  v.  British  and  Colonial  Steam  Nav.  Co.,  L. 
R.  4.  Ex.  238  (E.\.  Ch.).  esp.  judgment  of  Byles,  J.,  246.  Compare  Smith, 
Master  and  Servant,  2nd  ed.,  205,  206;  Lucey  v.  Ingram,  6  M.  &  W.  302: 
Hammond  v.  Rogers,  7  Moo.  P.  C.  160;  Conservators  of  the  Thames  v.  Hall. 
L.  R.  3.  C.  P.  415. 

(«)  Martin  v.  Temperley,  4  Q.  B.  298  ;  12  L.  J.  129,  Q.  B. 


the   corporation   clothed  with    the 
control  and  manaj^ement  of  a  dis- 
tinct   department    in    which    their 
duty  is  entirely  that  of  direction 
and  superintendence.  A  conductor, 
having  the  entire  control  and  man- 
agement of  a  railway  train,  occu- 
pies  a  different   position   from  the 
brakeman,  the   porters   and   other 
subordinates  employed.     He  is,  in 
fact,  and  should  be  treated  as  the 
personal  representative  of  the  cor- 
poration, for  whose   negligence   it 
is   responsible   to  subordinate   ser- 
vants.     This   view  of  his  relation 
to   the  corporation  seems  to  us   a 
reasonable  and  just  one,  and  it  will 
insure  more  care  in  the  selection  of 
such  agents  and  thus  give  greater 
security  to  the  servants    engaged 
under  him  in  an  employment  re- 
quiring   the    utmost  vigilance    on 
their  part  and  prompt  and  unhesi- 
tating    obedience    to     his    orders. 
The    rule  which    applies  to    such 
agents  of  one  railway  corporation 
must  apply  to  all,  and  many  cor- 
porations operate  every  day   sev- 
eral trains  over  hundreds  of  miles 
at  great  distances  apart,  each  being 
under  the  control  and  direction  of 
a  conductor  specially  appointed  for 
its  management.    We  know   from 


the  manner  in  which  railways  are 
operated  that,  subject  to  the  gen- 
eral rules  and  orders  of  the  direc- 
tors of   the  companies,  the    con- 
ductor    has    entire    control     and 
management  of  the  train  to  which 
he  is  assigned.     He  directs  when 
it  shall  start,  at  what  speed  it  shall 
run,  at  what  stations  it  shall  stop 
and  for  what  length  of  time,  and 
everything  essential  to  its  success- 
ful   movements,   and    all    persons 
employed  on  it  are  subject  to   his 
orders.     In  no  proper  sense  of  the 
terms   is   he   a  fellow-servant  with 
the    firemen,    the    brakemen,    the 
porters  and  the  engineer.     The  lat- 
ter are  fellow- servants  in  the  run- 
ning of  the   train  under  his  direc- 
tion ;  as  to  them  and  the  train,  he 
stands  in  the  place  of  and  repre- 
sents the  corporation.    As  observed 
by  Mr.  Wharton,  in  his  valuable 
treatise  on  the  Law  of  Negligence  : 
'  It  has  sometimes  been  said  that  a 
corporation  is  obliged  to  act  always 
by  servants,  and  that  it  is  unjust  to 
impute  to  it  personal  negligence  in 
cases  where  it  is  impossible  for  it  to 
be    negligent    personally.     But    if 
this   be  true,  it  would    relieve  cor- 
porations from  all  liability  to   ser- 
vants.    The  true   view  is   that  as 


PRIXCIPAL    AND    AGENT, 


483 


Exception  3. — Where  the  employer  is  a  public  officer    [462] 
under  g^overnment. 

Public  officers  under  government  {e.g.,  the  postmaster- 
general)  are  not  responsible  for  torts  committed  by  their 


corporations  can  act  only  through 
superintending  officers,  the  negli- 
gences of  those  officers,  with  re- 
spect to  other  servants,  are  the 
negligences  of  the  corporations.' 
I  232  a.  The  author,  in  a  note, 
refers  to  Brickner  v.  New  York 
Central  Railroad  Co.,  2  Lans.  506, 
decided  in  the  Supreme  Court  of 
New  York  and  afterwards  con- 
firmed in  the  Court  of  Appeals,  49 
N.  Y.  572,  and  to  Malone  v.  Hatha- 
way, 64  N.  Y.  5,  decided  in  the 
latter  court,  in  which  opinions  are 
expressed  in  conformity  with  his 
views.  These  opinions  are  not,  it 
is  true,  authoritative  for  they  do 
not  cover  the  precise  points  in 
judgment,  but  were  rather  ex- 
pressed to  distinguish  the  questions 
thus  arising  from  those  then  before 
the  court.  They  indicate,  however, 
a  disposition  to  engraft  a  limitation 
upon  the  general  doctrine  as  to  the 
master's  exemption  from  liability  to 
his  servants  for  the  negligence  of 
their  fellows,  when  a  corporation  is 
the  principal  and  acts  through 
superintending  agents.  Thus  in 
the  fust  case  the  court  said:  'A 
corporation  cannot  act  personally. 
It  requires  some  person  to  superin- 
tend structures,  to  purchase  and 
control  the  running  of  cars,  to  em- 
ploy and  discharge  men  and  pro- 
vide all  needful  appliances.  This 
can  only  be  done  by  agents.  When 
the  directors  themselves  personally 


act  as  such  agents,  they  are  the  rep- 
resentatives of  the  corporations. 
They  are  then  the  executive  head 
or  master.  Their  acts  are  the  acts 
of  the  corporation.  The  duties 
above  described  are  the  duties  of 
the  corporation.  When  these  direc- 
tors appoint  s-ome  person  other 
than  themselves  to  superintend  and 
perform  all  these  executive  duties 
for  them,  then  such  appointee, 
equally  with  themselves,  represents 
the  corporation  as  master  in  all 
those  respects.  And  though,  in  the 
performance  of  these  executive 
duties,  he  may  be  and  is  a  servant 
of  the  corporation,  he  is  not  in 
those  respects  a  co-servant,  a  co- 
laborer,  a  co-employee,  in  the  com- 
mon acceptation  of  those  terms, 
any  more  than  is  a  director  who 
exercises  the  same  authority.'  Page 
516.  And  in  Malone  v.  Hathaway, 
in  the  Court  of  Appeals,  Judge  Al- 
len says  .  '  Corporations  necessarily 
acting  by  and  through  agents,  those 
having  the  superintendence  of 
various  departments,  with  dele- 
gated authority  to  employ  and  dis- 
charge laborers  and  employees, 
provide  materials  and  machinery 
for  the  service  of  the  corporation 
and  generally  direct  and  control 
under  general  powers  and  in- 
structions from  the  directors,  may 
well  be  regarded  as  the  representa- 
tives of  the  corporation  charged 
with  the  performance  of  its  duty 


484 


PARTIES     TO    ACTIONS. 


servants.  (?')  The  cases  in  which  public  officers  have  been 
held  not  liable  for  the  torts  of  their  subordinates  were 
decided  upon  the  ground,  that  the  government  was  the 

(7-)  Lane  v.  Cotton,  i  Salk.  17  :  r  Ld.  Raym.  646  ;  Whitfield  v.  Lord  le  Des- 
penser,  2  Cowp.  754;  Nicholson  v.  Mouncey,  15  East,  384.  Nor  is  there  any 
remedy  whatever  against  the  Crown.     See  Canterbury's  Case,  i  Phil.  306. 


exercising  the  discretion  ordinarily 
exercised  by  principals,  and,  within 
the  limits  of  the  delegated  author- 
ity, the  acting  principal.  These 
acts  are  in  such  case  the  acts  of  the 
corporation,  for  which  and  for 
whose  neglect  the  corporation, 
within  adjudged  cases,  must  re- 
spond as  well  to  the  other  servants 
of  the  company  as  to  strangers. 
They  are  treated  as  the  general 
agents  of  the  corporation  in  the 
several  departments  committed  to 
their  care.'  64  N.  Y.  5,  12.  See, 
also,  Corcoran  v.  Holbrook,  59  N. 

Y.  517. 

"  In  Little  Miami  Railroad  Co.  v. 
Stevens,  20  Ohio,  415,  the  Supreme 
Court  of  Ohio  held  that  where  a 
railroad  company  placed  the  engi- 
neer in  its  employ  under  the  con- 
trol of  a  conductor  of  its  train,  who 
directed  when  the  cars  were  to 
start  and  when  to  stop,  it  was  liable 
for  an  injury  received  by  him  caused 
by  the  negligence  of  the  conductor. 
There  a  collision  between  two  trains 
occurred  in  consequence  of  the 
omission  of  the  conductor  to  in- 
form the  engineer  of  a.  change  of 
places  in  the  passing  of  trains  or- 
dered by  the  company.  Exemp- 
tion from  liability  was  claimed  on 
the  ground  that  the  engineer  and 
conductor  were  fellow-servants,  and 
that  the  engineer  had,  in  conse- 
quence, taken,  by  his  contract  of 


service,  the  risk  of  the  negligence 
of  the  conductor,  and  also  that  pub- 
lic policy  forbade  a  recovery  in 
such  cases.  But  the  co'jrt  rejected 
both  positions.  To  the  latter  it 
very  pertinently  observed  that  it 
was  only  when  the  servant  had 
himself  been  careful  that  any  right 
of  action  could  accrue  to  him,  and 
that  it  was  not  likely  that  any 
would  be  careless  of  their  lives  and 
persons  or  property  merely  because 
they  might  have  a  right  of  action  to 
recover  for  injuries  received.  '  If 
men  are  influenced,'  said  the  court 
'  by  such  remote  considerations  lO 
be  careless  of  what  they  are  likely 
to  be  most  careful  about,  it  has 
never  come  under  our  observation. 
We  think  the  policy  is  clearly  on 
the  other  side.  It  is  a  matter  of 
universal  observation  that  in  any 
extensive  business  where  many 
persons  are  employed,  the  care  and 
prudence  of  the  employer  is  the 
surest  guarantee  against  misman- 
agement of  any  kind.'  In  Railway 
Co.  V.  Keary,  3  Ohio  St.  201,  the 
same  court  affirmed  the  doctrine 
thus  announced  and  decided  that 
when  a  brakeman  in  the  employ  of 
a  railroad  company,  on  a  train 
under  the  control  of  a  conductor 
having  exclusive  command,  was 
injured  by  the  carelessness  of  the 
conductor,  the  company  was  re- 
sponsible,  holding    that    the  con- 


PRINCIPAL    AND    AGENT. 


485 


principal  and  the  defendant  merely  the  servant,  {x)  and 
that  an  action  must  be  brought  either  against  the  principal 
or  against  the  immediate  actors  in  the  wrong:  {y)   and 

{jc)  The  Mersey  Docks  Co.  v.  Gibbs,  L.  R.,  i  H.  L.  lit,  per  Blackburn,  J. 
( y)  Story,  Agency,  s,  313.     See,  further,  as  to  this,  Subordinate  Rule, /Co/. 


ductor  in  such  case  was  the  sole 
and  immediate  representative  ot 
the  company  upon  which  rested 
the  obligation  to  manage  the  train 
wilh  skill  and  care.  In  the  course 
of  an  elaborate  opinion  the  court 
said  that  from  the  very  nature  of 
the  contract  of  service  between  the 
company  and  the  employees,  the 
company  was  under  obligation  to 
them  to  superintend  and  control 
with  skill  and  care  the  dangerous 
force  employed  upon  which  their 
safety  so  essentially  depended. 
'  For  this  purpose,'  said  the  court, 
'  the  conductor  is  employed,  and  in 
this  he  directly  represents  the  com- 
pany. They  contract  for  and  en- 
gage his  care  and  skill.  They 
commission  him  to  exercise  that 
dominion  over  the  operators  of  the 
train  which  essentially  pertains  to 
the  prerogatives  of  the  owner,  and 
in  its  exercise  he  stands  in  the  place 
of  the  owner  and  is  in  the  discharge 
of  a  duty  which  the  owner,  as  a 
man  and  a  party  to  the  contract  of 
service,  owes  to  those  placed  under 
him,  and  whose  lives  may  depend 
on  his  fidelity.  His  will  alone  con- 
trols everything,  and  it  is  the  will 
of  the  owner  that  his  intelligence 
alone  should  be  trusted  for  this 
purpose.  This  service  is  not  com- 
mon to  him,  and  the  hands  placed 
under  him.  They  have  nothing  to 
do  with  it.  His  duties  and  their 
duties    are    entirely   separate    and 


distinct,  although  both  necessary 
to  produce  the  result.  It  is  his  to 
command  and  theirs  to  obey  and 
execute.  No  service  is  common 
that  does  not  admit  a  common  par- 
ticipation, and  no  servants  are  fel- 
low-servants when  one  is  placed  in 
control  over  the  others.' 

"  In  Louisville  and  Nashville  R. 
R.  Co.  V.  Collins,  2  Duv.  114,  the 
subject  was  elaborately  considered 
by  the  Court  of  Appeals  of  Ken- 
tucky, and  it  held  that  in  all  those 
operations  which  require  care, 
vigilance  and  skill,  and  which  are 
performed  through  the  instrumen- 
tality of  superintending  agents,  the 
invisible  corporation,  though  never 
actually,  is  yet  always  construc- 
tively present  through  its  agents, 
who  represent  it  and  whose  acts, 
within  their  representative  spheres, 
are  its  acts ;  that  the  rule  of  En- 
glish courts  that  the  company  is 
not  responsible  to  one  of  its  ser- 
vants for  an  injury  inflicted  from 
the  neglect  of  a  fellow-servant,  was 
not  adopted  to  its  full  extent  in  that 
state,  and  was  regarded  there  as 
anomalous,  inconsistent  with  prin- 
ciple and  public  policy  and  unsup- 
ported by  any  good  and  consistent 
reason.  In  commenting  upon  this 
decision,  in  his  Treatise  on  the  Law 
of  Railways,  Redfield  speaks  with 
emphatic  approval  of  the  declara- 
tion that  the  corporation  is  to  be 
regarded  as  constructively  present 


486 


PARTIES     TO    ACTIONS. 


can  not  be  maintained  aj^fainst  an  intermediate  subordin- 
ate  under  whom  the  actual  wrong-doer  is  employed  ;  and 
this  holds  although  there  is  no  remedy  in  the  case  of 
torts  committed  by  persons  employed  by  government 
against  the  ultimate  principal,  i.  c,  the  Crown,  {z) 

It  was  at  one   time   thought   {a)  that   this  exception 
protected    trustees   or    corporations   for   the   gratuitous 

(s)  Canterbury's  Case,  i  Phil.  306. 

(,/;  Metcalfe  v.  Hetheringtoii,  24  L.  J.   314,    Ex.  ;  11  Ex.  257  ;  5  H.  &   N 
719  ;  Holiday  v.  St.  Leonard'.s,  Shoreditch,  30  L.  J.  361.  C.  P.  ;  ii  C.  B.,  N.  i; 

I<)2 

in  all  acts  performed  by  its  general  management  of  it  and  control  over 
agents  within  the  scope  of  their  the  persons  employed  upon  it, 
authority.  '  The  consequences  of  represents  the  coinpany,  and  there- 
mistake  or  misapprehension  upon  fore  that  for  injuries  resulting  from 
this  point,'  says  the  author,  'have  his  negligent  acts  the  company  is 
led  many  courts  into  conclusions  responsible.  If  such  a  conductor 
greatly  at  variance  with  the  com-  does  not  represent  the  company, 
mon  instincts  of  reason  and  hu-  then  the  train  is  operated  without 
manity  and  have  tended  to  inter-  any  representative  of  its  owner, 
pose  an  unwarrantable  shield  If  now  we  apply  these  views  of  the 
between  the  conduct  of  railway  relation  of  the  conductor  of  a  rail- 
employees  and  the  just  responsi-  way  train  to  the  company  and  to 
bility  of  the  company.  We  trust  the  subordinates  under  him  on  the 
that  the  reasonableness  and  justice  train,  the  objections  urged  to  the 
of  this  construction  will  at  no  dis-  charge  of  the  court  will  be  readily 
tant  day  induce  its  universal  adop-  disposed  of.  Its  language,  in  some 
tion.'  Vol.  I.,  p.  554.  There  are  sentences,  may  be  open  to  verbal 
decisions  in  the  courts  of  other  criticism,  but  its  purport  touching 
states  more  or  less  in  conformity  the  liability  of  the  company  is  that 
with  those  cited  from  Ohio  and  the  conductor  and  engineer,  though 
Kentucky,  rejecting  or  limiting  to  both  employees,  were  not  fellow- 
a  greater  or  less  extent  the  master's  servants  in  the  sense  in  which  that 
exemption  from  liability  to  a  ser-  term  is  used  in  the  decisions  that 
vant  for  the  negligent  conduct  of  the  former  was  the  representative 
his  fellows.  We  agree  with  them  of  the  company,  standing  in  its 
in  holding — and  the  present  case  place"  and  stead  in  the  running  of 
requires  no  further  decision — that  the  train,  and  that  the  latter  was  in 
the  conductor  of  a  railway  train,  that  particular  his  subordinate,  and 
who  commands  its  movements,  that  for  the  former's  negligence,  by 
diiectswhen  it  shall  start,  at  what  which  the  latter  was  injured,  the 
stations  it  shall  stop,  at  what  speed  company  was  responsible.'' 
it  shall  run,  and  has  the   general 


PRINCIPAL    AND    AGENT.  487 

performance  of  public  works,  from  liability  to  be  sued 
for  the  torts  of  their  servants  ;  but  it  appears  now  settled, 
that  the  principle  on  which  a  private  person  or  company 
is  liable  for  damages  occasioned  by  the  neglect  of  ser- 
vants applies  to  commissioners,  trustees,  corporations,  or 
others,  entrusted  with  the  performance  of  public  works, 
even  though  no  gain  is  derived  from  the  works  by  the  com- 
missioners, Slc,  either  in  their  individual  or  in  their  cor- 
porate capacity,  {b) 

Rule  103.— A    servant  or    other  agent  is   [463] 
liable  to  the  person  wronged  for  acts  of  mis- 
feasance, or  positive  wrong,  in  the  course  of  his  employ- 
ment, but  not  for  acts  of  non-feasance  or  mere  omis- 
sion, (c) 

All  persons  concerned  in  a  wrong  are  liable  to  be 
charged  as  principals.  "  The  warrant  of  no  man,  not 
even  the  king  himself,  can  excuse  the  doing  of  an  illegal 
act,  for  although  the  commanders  are  trespassers  so  are 
also  the  persons  who  did  the  fact;"  {d)  and  "  no  authority 
whatsoever  from  a  superior  can  furnish  to  any  party  a 
just  defense  for  his  own  positive  torts  or  trespasses,  for  no 
man  can  authorize  another  to  do  a  positive  wrong."  {e) 
Hence,  a  ser-vant  who  commits  a  trespass,  or  who  injures 
the  plaintiff  by  negligent  driving,  or  by  a  fraud,  (/)  is 
liable  to  be  sued  by  the  person  injured,  and  the  agent  who 
actually  does  the  wrong  may  be  liable,  though  his 
employer  {e.  g.,  as  being  a  public  officer  under  govern- 
ment) can  not  be  sued.  If  goods  are  delivered  by  T.  to 
P.  to  keep  them,  and  P.  in  his  turn  delivers  them  to  A.  to 
keep  ^'or  the  use  of  T.,  and  A.  wastes  or  destroys  them, 
T.  may  sue  A.,  although  the  bailment  was  not  made  to 

(b)  Mersey  Docks  Co.  v.  Gibbs,  L.  R.  I.  H.  L.  93  ;  35  L-  J-  225.  Ex.  (II.  L.). 

(c)  See   Smith.  Master   and  Servant,   2ncl  cd.,    aji,    and    following   Story, 
Agency,  s.  308-312. 

{d)  SanJ.s  V.  Child.  3  Lev.  352  ;  but  see  Huron  v.  Dc-nman.  2  hx.  1O7. 

(e)  Story.  Agency,  s.  309. 

(/)  Smith,    Master    and   Servant.    2nd   ed..    245,   246.      Compare    Story 

Agency,  s.  310, 


488  PARTIES     TO    ACTIONS. 

A.  by  T.,  for  A.  is  a  wrono-docr.  (<,>■)  If,  again,  an  auc- 
tioneer is  employed  bv  a  sheriff  to  sell  at  an  auction  goods 
which  the  sheriff  had  taken  in  execution,  which  were  not 
the  property  of  the  execution  debtor,  the  auctioneer,  if 
he  sells    them,  is   equally    liable    to  an   action    with    the 

sheriff.  (/)  "  The  point  [in  such  a  case]  is  whether 
[464]    [the  servant]  is  not  a  tort-feasor;  for  if  he  be  so,  no 

authority  he  can  derive  from  his  master  can  excuse 
him  from  being  liable.  .  .  .  The  act  of  selling  the 
goods  is  the  conversion,  and  whether  to  the  use  of  him- 
self or  another  it  makes  no  difference."  {k)  Servants, 
therefore,  have  often  been  held  liable  in  trover  for  the 
conversion  of  goods,  though  the  act  was  done  for  their 
employer's  benefit.  (/)  P.  purchased  goods  under  cir- 
cumstances which  made  him  guilty  of  a  conversion.  The 
goods  were  delivered  to  A.,  P.'s  clerk,  who  sent  them  to 
P.,  who  was  in  America.  A.  was  held  liable  for  an  act  of 
conversion,  (in)  "  A  person  is  guilty  of  conversion  who 
intermeddles  with  any  property  and  disposes  of  it,  and  it 
is  no  answer  that  he  acted  under  authority  from  another, 
who  had  himself  no  authority  to  dispose  of  it.  .  .  And 
the  court  is  governed  by  the  principle  of  law,  and  not  by 
the  hardship  of  any  particular  case,  for  what  can  be  more 
hard  than  the  common  case  in  trespass  where  a  servant 
has  done  some  act  in  assertion  of  his  master's  right,  that 
he  shall  be  liable,  not  only  jointly  with  his  master,  but  if 
his  master  can  not  satisfy  it,  for  every  penny  of  the  whole 
damage  ;  and  his  person  also  shall  be  liable  for  it ;  and, 
what  is  still  more,  that  he  shall  not  recover  contribution?  " 
But  the  same  act  which  would  amount  to  conversion  if 
committed  by  the  master  need  not  necessarily  bear  this 
character  when  done  by  the  servant.  Where,  for  example, 
the  latter  refuses  to  deliver  up  goods  received  from  his 
master   without  his  master's   orders.      Such  refusal   has 

(g)  Stor)',  Agency,  s.  311. 
(i)  Farebrother  v.  Ansley,  i  Camp.  343. 
(k)  Perkins  v.  Smith,  I  Wilson,  328,  per  Lke,  C.  J. 
(/)  Ibid. 

(m)  Stephens  v.  Elvvall,  4  M.  &  S.  259,  261,  judgment  of  Ellenborough 
C.J. 


PRINCIPAL    AND    AGENT.  489 

been  held  not  to  amount  to  a  conversion  by  the  servant. 
The  distinction  is  that  if  the  servant  refuse  to  give  up  the 
goods  to  the  rightful  owner,  and  rely  on  his  master's  title, 
he  is  liable  in  trover ;  but  if  he  merely  gives  a  qualified 
refusal  and  refers  to  his  master,  he  is  not  liable.  (;/) 

A  servant  or  agent  is  not  liable  to  third  persons  [465] 
for  the  mere  non- performance  of  his  duties  as  such 
agent.  "  Non-feasances  or  mere  neglects  in  the  perform- 
ance of  duty  .  .  .  must  arise  from  some  express  or 
implied  obligation  between  particular  parties  standing  in 
privity  of  law  or  contract  with  each  other,  and  no  man  is 
bound  to  answer  for  such  violations  of  duty  or  obligation 
except  to  those  to  whom  he  has  become  directly  bound 
or  amenable  for  his  conduct."  {p)  The  distinction,  how- 
ever, between  acts  which  are  mere  neglects  of  an  agent's 
duty  to  his  principal  and  acts  which  are  wrongs  towards 
third  parties  is  a  very  fine  one.  If,  for  example,  the  ser- 
vant of  a  carrier  negligently  loses  a  parcel  of  goods 
entrusted  to  him,  the  carrier,  and  not  the  servant,  is 
responsible  to  the  bailor  or  owner  of  the  goods.  (/)  But 
if  the  servant  were  willfully  to  destroy  them  he  would  be 
liable  to  the  owner,  {q) 

In  determining  the  liability  of  a  servant  towards  a 
third  party  the  question  to  be  answered  is,  it  is  conceived, 
has  the  act  of  the  servant  merely  violated  a  duty  he  owes 
to  his  master,  or  is  it  also  an  infringement  of  the  rights  of 
the  third  party  ?  In  the  former  case  he  can  not,  in  the 
latter  he  can,  be  sued  by  such  party,  {s) 

\ti)  Lee  v.  Robinson,  25  L.  J-  249.  C.  P. ;  Lee  v.  Biyes  iS  C.  B.  599,  607. 
Compare  Alexander  v.  Southey,  5  W.  &  Aid.  247,  with  Wil-on  v.  Anderton,  i 
H.  \  .\d.  450  ;  Smitli,  Master  and  Servant,  2nd  ed.,  244-246. 

(o)  Story.  A:;encv,  s.  309.  This  is  in  reality  an  application  of  the  principle 
that  no  one  can  sue  for  the  breach  of  a  con'.ract  except  tlie  ])arty  with  whom  it 
is  made.     See  Rule  10. 

(/»)  Lane  v.  Cotton,  12  Mod.  488. 

{q)  Compare  Story,  Agency,  ss.  310.  31 1. 

(j)  It  has  been  suggested  that  a  servant  is  not  liable  for  an  injurv  to  his 
fellow-servant  in  the  course  of  theircommon  employment  (Southcote  v.  Stanley, 
I  H.  &  N.  247  ,  25  L.  J.  339,  Ex.  See  25  L.  J.  340,  Kx.,  judgment  of  F'CL- 
LOCK,  C.  B.  Comp,irc  AH.ro  v.  J.af|uilh,  4  Gray,  Rep.  (Amer.)  99  ;  Farwcll  v. 
Boston  and  Worcester  Rail.  Co.,  4  Melc.  (Amer.)  49).  But  the  correctness  of 
this  view  is  most  floubtful. 


490  PARTIES     TO    ACTIONS. 

Can  the  principal  and  agent  he  jointly  sued? — A  master 
and  servant  can  certainly  be  sued  jointly  when  they  are 
liable  in  the  character  of  joint  wrong-doers,  e.  g.^ 
[466]  where  the  servant  trespasses  by  order  of  the  mas- 
ter, (-r)  The  preponderance  of  authority  is  further 
in  favor  of  their  hability  to  a  joint  action  where  the  mas- 
ter is  responsible,  not  as  a  joint  wrong-doer,  but  because 
bis  servant  committed  the  wrong  complained  of  in  the 
course  of  his  employment,  {y)  Thus  a  i-ailway  company 
and  their  manager  have  been  jointly  sued  for  malicious 
prosecution,  {z)  So  a  clerk  of  commissioners,  a  contractor,. 
and  the  contractor's  servant,  have  been  sued  jointly  for 
damage  caused  by  opening  a  ditch  across  a  highway,  {a) 
Still  it  has  been  doubted  on  high  authority  whether  a 
master  and  servant  can  be  sued  jointly,  where  the  master 
is  liable  only  on  account  of  his  position  as  master,  {b) 


SUBORDINATE  RULE. 

An  action  for  tort  may  be  brought  either  against  the  princi- 
pal or  against  the  immediate  actor  in  the  wrong,  but 
can  not  be  brought  against  an  intermediate  agent,  (c) 

If  P.  employs  X.  to  act  as  manager  of  his  business, 
and  X.  hires  A.  who  commits  a  wrong  against  T.,  T.  can, 
as  a  general  rule,  either  sue  P.  on  the  ground  of  the 
wrong  being  committed  by  A.  in  the  ccnirse  of  his  employ- 
ment, or  sue  A.  as  being  the  actual  wrong-doer.  But  he 
can  not  sue  X.,  who  is  neither  A.'s  principal  nor  himself 
the  doer  of  the  wrong. 

"  If  an  action  were  brought  by  the  owner  of  goods 

(x)  See  a?tte. 

( y )  See  anig. 

(2)  Stevens  v.  Midland  Rail.  Co.,  23  L.  J.  32S,  Ex.  ;  10  Ex.  352. 

(a)  Hall  V.  Smith,  2  Bing.  156. 

{d)  Compare  Michael  v.  Alestree,  2  Lev.  172  ;  Whitamore  v.  Waterhouse, 
4  C.  &  P.  383  ;  Parsons  v.  Winchell,  5  Cush.  (Amer.)  592,  where  all  the  ca^es 
are  reviewed. 

(c)  Story,  Agency,  s.  313  ;  Mersey  Docks  Co.  v.  Gibbs,  L.  R.  i,  H.  L.  93; 
35  L.  J.  225,  Ex.  (li.  L.). 


PRINCIPAL    AND    AGENT.  491 

against  the  manager  of  the  goods  traffic  of  a  railway  com- 
pany, for  some  injuries  sustained  on  the  line,  it  would  fail, 
unless  it  could  be  shown  that  the  damage  were  done  by 
his  orders  or  directions;  for  the  action  must  be 
brought  either  against  the  principal  or  against  the  [467] 
immediate  actors  in  the  wrong.  .  .  .  The  princi- 
ple is  the  same  as  that  on  which  the  surveyor  of  the  high- 
ways is  not  responsible  to  a  person  sustaining  injury, 
from  the  parish  ways  being  out  of  repair,  though  no 
action  can  be  brought  against  his  principals,  the  inhabi- 
tants of  the  parish."  {d) 

The  masters  of  ships,  however,  although  servants  of 
the  owners,  are  responsible  for  the  negligence  of  subor- 
dinate officers,  and  others  employed  by  them,  {e) 

(d)  Mersey  Docks  Co.  v.  Gibbs,  L.  R.,  I   H.  L.   in   per    BLACKBURN,  J 

f  Vonnor  V,  Davis.  7  H.  &  N.  r6o  !     3I  L.  J.  25O,  Ex. 


(a  )  Mersey  uocks  i^o.  v.  vjidds,  j_. 
See  Young  v.  Davis,  7  H.  &  N.  760 ;   31 
(e)  Story,  Agency,  s.  315. 


49^5  PARTIES     TO    ACTIONS. 


CHAPTER  XXVII. 

PARTNERS. 

Rule  104. — One,  or  any,  or  all  of  the  partners  in 
a  firm,  or  members  of  an  unincorporated  company, 
may  be  sued  jointly  for  a  wrong  committed  by  the 
firm  or  company. 

A  firm  is  nothing  more  than  the  persons  who  at  any 
given  moment  compose  it.  {a)  Hence,  for  any  wrong 
which  can  be  considered  the  act  of  the  firm,  the  members 
X.,  Y.,  and  Z.,  are  collectively  and  individually  {b)  liable 
to  be  sued.  An  act  may  be  the  act  of  the  firm,  either 
because  it  is  done  by  one  of  the  partners  within  the 
scope  of  his  partnership  business,  that  is,  as  agent  of 
the  firm ;  or  because  it  is  done  by  a  person  {e.  g.,  a  ser- 
vant), in  the  employment  of  the  firm.  The  rule  that  all 
or  any  of  the  partners  may  be  sued  holds  good  even 
when  the  tort  complained  of  is  in  no  other  sense  the  act 
of  the  firm  than  as  being  the  act  of  a  servant  of  the  firm 
in  the  course  of  his  employment.  If,  for  example,  M., 
the  servants  of  the  partners  X.,  Y.,  and  Z.,  in  the  course 
of  his  service  injures  A.  through  his  negligence  or  fraud. 
{c)  A.  can  sue  X.  alone,  and  X.  can  not  object  to  the  non- 
joinder of  Y.  and  Z.  {d) 
[468]  The  principle  that  there  is  no  contribution  between 
wrong-doers  {e)  does  not  apply  to  a  person  made  a 

{a)  See  as  to  nature  of  partnerships  and  unincorporated  companies,  ante. 

\b)  Rule  98. 

{c)  Rapp  V.  Latham,  2  B.  &  A.  795  ;  Lovell  v.  Hicks,  2  Y.  &  C.  (Ex.)  46, 
481  ;  I  Lindley,  Partnership,  2nd  ed.,  319,  320.     See  ante. 

{d)  Mitchell  v.  Tarbutt,  5  T.  R.  649  ;  Ansell  v.  Waterhouse,  6  M  &  S. 
385  ;    I  Lindley.  Partnership,  2nd  ed„  488,  489. 

le)  See  ante. 


PARTNERS. 


493 


wrong-doer  by  inference  of  law  only.  X.  therefore,  in  the 
supposed  case,  could  recover  from  Y.  and  Z.  their 
share  of  the  damages  which  he  was  compelled  to  pay 
A.(/) 

Exception. — Where  partners  sued  as  co-owners  of  land,  {g 

(/)  Merryweather  v.  Nixan,  2   Smith,  L.  C,  6th  ed.,  481,  486;  Pearson  v. 
Skelton,  I  M.  &  W.  504  ;  Adamson  v.  Jarvis,  4  Bing.  66. 
{g)  I  Lindley,  Partnership,  2nd  ed.,  489. 


494  PARTIES     TO    ACTIONS. 


CHAPTER  XXVIII. 

CORPORATIONS,    {o) 

Rule  105. — A  corporation  or  incorporated  body 

can  be  sued  for  torts,  (b) 

Corporations  are  liable  to  be  sued  for  any  wrong  which 
they  can  commit. 

"  There  are,  of  course,  some  offenses  for  which  a  cor- 
poration can  not  be  sued;  for  instance,  murder,  fo.*  a 
corporation  can  not  commit  murder  ;  nor  can  they  be  sued 
for  immoral  crimes,  such  as  adultery,  nor  for  corruption  ; 
though  the  members  individually  might  be  sued."  {c) 
These  offenses  are,  it  is  true,  rather  crimes  than  torts ; 
but  there  are  some  wrongs,  e.g.,  seduction,  of  which  a  cor- 
poration must  be  manifestly  incapable.  It  was  at  one 
time  thought  {d)  but,  it  is  conceived,  erroneously  {e)  that 
corporations  could  not  commit  torts,  such,  e.  g.,  as 
malicious  prosecution,  or  libel,  involving  the  existence  of 

malice. 
[471]  A  corporation  or  company,   being  an  abstract 

thing,  must  always  act  through  agents,  (/)  and  ar 

{a)  A  corporation,  or  incorporated  company,  can  sue  for  wrongs  to  itself  bv 
its  corporate  name  in  the  same  manner  as  other  persons.  There  is  nothing  to 
prevent  a  corpora'ion  from  suing  one  of  its  own  members.  (Metropolitan 
Saloon  Omnilnis  Co.  v.  Hawkins,  28  L.  J.  201,  Ex. ;  4  H.  &  N.  87.) 

(l>)  As  to  nature  of  corporations,  see  ante. 

(c)  Metrojiolilan  Saloon  Omnibus  Co.  v.  Hawkins,  28  L.J.  202,  Ex.;  per 
Pollock,  C.  B. 

(d)  Stevens  v.  Midland  Rail.  Co.,  10  Ex.  252  ;  23  L.  J.  328,  Ex.  ;  Bullen. 
Pleadings,  3rd  ed.,  300. 

(e)  Green  v.  London  General  Omnibus  Co.,  7  C.  B.,  N.  S.,  290;  29  L.  J.  13, 
C.  P.  ;  Limpus  v.  London  General  Omnilnis  Co.,  i  H.  &  C.  526;  32  L.  J.  34, 
Ex.  (Ex.  Ch.) ;  i  Lindlcy,  Partnership,  2nd  ed.,  306. 

(/)  Bullen,  Pleadings,  3rd  ed.,  300  ;  National  Exchange  Co.  of  Glasgow  v. 
Drew,  2  McQ.  103,  esp.  judgment  of  Lord  Ckanworth,  p.  123-127  ;  and  see 
Ferguson  v.  Wil.'-on,  L.  R.  2,  Ch.  App.  89. 


CORPORA  TIONS.  495 

liable  for  ihc  negligence  of  their  servants  committed  by 
them  in  tlie  course  of  their  employment,  (^)  and  it  has 
therefore  been  held  that  the  Bank  of  England  was  liable 
for  a  wrongful  detention  of  goods  by  the  bank's  servants. 
(//)  It  is,  however,  essential,  in  an  action  against  a  corpo- 
ration, as  in  one  against  any  other  principal,  to  show  that 
the  tort  sued  for  was  either  authorized  or  ratified  by  tne 
corporation,  or  within  the  scope  of  the  servant's  employ- 
ment, (z ) 

Can  a  corporatio7i  be  sued  for  fraud  ? — There  is  good 
authority  for  the  statement  that  "  an  action  for  fraud  can 
not  be  maintained  against  a  corporation."  (_/") 

"  The  true  principle  is,  that  these  corporate  bodies  [viz., 
companies],  through  whose  agents  so  large  a  portion  of 
the  business  of  the  country  is  now  carried  on,  may  be 
made  responsible  for  the  frauds  of  those  agents  to  the 
extent  to  which  the  companies  have  profited  from  these 
frauds  ;  but  that  they  can  not  be  sued  as  wrong-doers  by 
imputing  to  them  the  misconduct  of  those  whom  they  have 
employed.  A  person  defrauded  by  directors,  if  the  sub- 
sequent acts  and  dealings  of  the  parties  have  been  such  as 
to  leave  him  no  remedy  but  an  action  for  the  fraud,  must 
seek  his  remedy  against  the  directors  personally."  {IS) 
"  The  principle  (of  making  a  company  responsible  for  the 
misrepresentations  of  the  directors)  can  not  be  carried  to 
the  wild  length  that  I  have  heard  suggested ;  namely, 
that  you  can  bring  an  action  against  the  company 
upon  the  ground  of  deceit,  because  the  directors  [472] 
have  done  an  act  which  might  render  them  liable 
to  such  an  action.  That  I  take  not  to  be  the  law  of 
the  land,  nor  do  I  believe  that  it  would  be  the  law  of  the 
land  if  the  directors  were  the  agents  of  some  person  not 

( g)  Mersey  Docks   Co.   v.    Gibbs  L.    R.    I,    II.    I,.  93;  35    L.J.    225,    E.\. 

(II.  L.;. 

(/;)  Varborough  v.  Bank  of  England,  16  East,  6. 

(1)  .Sliles  V.  Carclifi"  Sle.im  Boat  Co.,  33  L.  J.  310  Q.  l!.  ;  \  Lindley,  Tart- 
ncrship,  2nd  cd.,  305,  306. 

(j)  Bullcn,  I'lcading.s.  3rd  ed.,  300;  Western  Bank  of  Scotland  v.  Addie, 
L.  k.  I,  Sc  App.  145. 

Kk)  Western  Bank  of  Scotland  v.  Addic,  L.  R.  i,  .Sc.  .\pp.  167,  jud^;ment 
of  Lord  Cranwoktu. 


496  PARTIES     TO    ACTIONS. 

a  company.  The  fraud  must  be  a  fraud,  that  is,  either 
pcrsimal  on  tlie  part  of  the  individual  making  it,  or  some 
fraud  which  another  person  has  impliedly  authorized  him 
to  be  guilty  of  (/)  "  The  distinction  to  be  drawn  from  the 
authorities,  which  is  sanctioned  by  sound  principle, 
appears  to  be  this.  Wiion  a  j^erson  has  been  drawn  into 
a  contract  to  purchase  shares  belonging  to  a  company  by 
fraudulent  misrepresentations  of  the  directors,  and  the 
directors,  in  the  name  of  the  company,  seek  to  enforce 
that  contract,  or  the  person  who  has  been  deceived  insti- 
tutes a  suit  against  the  company  to  rescind  the  contract 
on  the  ground  of  fraud,  the  misrepresentations  are  imputa- 
ble to  the  company,  and  the  purchaser  can  not  be  held  to 
nis  contract,  because  a  company  can  not  retain  any  bene- 
fit which  they  have  obtained  through  the  fraud  of  theii 
agents.  But  if  the  person  who  has  been  induced  to  pur- 
chase shares  by  the  fraud  of  the  directors,  instead -of  seek- 
ing to  set  aside  the  contract,  prefers  to  bring  an  action 
for  damages  for  the  deceit,  such  an  action  can  not  be  main- 
tained against  the  company,  but  only  against  the  directors 
personally."  {in) 

There  is,  however,  nearly  equally  good  authority  for 
the  statement  that  a  corporate  body  can  be  sued  for  the 
fraud  of  their  agent  committed  in  the  course  of  his  employ- 
ment. The  Court  of  Exchequer  Chamber  have  recently 
held  a  joint-stock  banking  company  directly  liable  for  the 
fraud  of  their  manager,  {n)  and  have  thus  laid  down  the  law. 
"  It  is  said,  [on  behalf  of  the  defendant  1  if  it  be  established 

that  the  bank  are  answerable  for  this  fraud,  it  is  the 
[473]    fraud  of  the  manager,  and  ought  not  to  have  been 

described  as  the  fraud  of  the  bank.  I  need  not  go 
into  the  question  whether  it  be  necessary  to  resort  to  the 
count  in  case  for  fraud,  or  whether,  under  the  circumstan- 
ces, money  having  been  actually  procured  for  and  paid 
into  the  bank  which  ought  to  have  got  into  the  plaintiff's 

(/)  New  Brunswick  Co.  v.  Conybeare,  9  H.  L.  C.  711,  739,  per  Lord  Cran- 
WORTH. 

(:»)  Western  Bank  of  Scotland  v.  Addie,  L.  R.  r,  Sc.  App.  157,  158,  per 
Chklmsfokd,  Cli. 

(«)  Barwick  v.  English  Joint  Stock  Bank,  L.  R.  2,  Ex.  259  (Fx.  Ch.). 


CORPORA  TIONS.  497 

nands,  the  count  for  money  had  and  received  is  not  appli- 
cable to  the  case.  I  do  not  discuss  that  question,  because 
at  common  law  no  such  difficulty  as  here  suggested  is 
recognized.  If  a  man  is  answerable  for  the  wrong  of 
another,  whether  it  be  fraud  or  other  wrong,  it  may  be 
described  in  pleading  as  the  wrong  of  the  person  who  is 
sought  to  be  made  answerable  in  the  action."  {0) 

The  law  on  the  point  under  consideration  must  be 
considered  as  open  to  doubt,  but  may  probably  (it  is  sub- 
mitted), be  still  summed  up  as  follows : 

"  So  long  as  it  is  law  that  a  principal  may  be  bound 
by  the  unauthorized  act  of  his  agent,  {p)  so  long  it  will 
be  impossible  to  deny  that  companies  may  be  affected  by 
the  false  and  fraudulent  representations  of  their  directors, 
although  they  have  no  authority  to  promulgate  false- 
hoods. The  falsehood  may  be  an  excess  of  authority, 
but  it  does  not  therefore  follow  that  it  is  imputable  only 
to  those  who  utter  it :  {q)  and  it  is  submitted  that  the 
question  whether  a  false  and  fraudulent  statement  can 
be  regarded  as  the  statement  of  a  company,  must  be 
answered  in  the  affirmative,  if  the  statement  in  question 
is  made  by  an  agent  of  the  company,  if  it  relates  to  a 
matter  as  to  which  he  is  its  agent,  and  if  it  is  made  in  the 
course,  and  as  part,  of  the  business  which  he  is  appointed 
to  transact  for  the  company."  {q)  (r) 

{0)  Barwick  v.  English  Joint  Stock  Bank,  L.  R.  2,  Ex.  266,  judgment  of  the 
Exchequer  Chamber  delivered  by  WlLLES,  J. 

(p)  Foster  v.  Green,  7  H.  &  N.  881  ;  31  L.  J.  158,  Ex. 

{q)  Burnes  v.  Pennell,  2  H.  L.  C.  497  ;  Deposit  and  General  Life  Assurance 
Co.  V.  Ayscough,  6  E.  &  B.  761  ;  Nicol's  Case,  3  De  G.  &  J.  387  ;  Blake's  Case, 
34  Beav.  639. 

(r)  I    Lindlcy,  Partnership,   2nd  ed.,  326.     See,   further,  Cox,  Joint  Stock 
Companies,  7th  ed.,  38,  39. 
82 


498  PARTIES     TO    ACTIONS. 


CHAPTER  XXIX. 

INFANTS,  {a) 

Rule  io6. — An  infant  may  be  sued  for  torts  com- 
?  tted  by  him.  (b) 

Infancy  is  no  defence  to  an  action  for  tort,  e.  g.,  for  an 
assault,  a  trespass,  &c. 

Torts  founded  on  contract,  (c) — An  infant  can  not  be 
made  liable  for  what  is  really  a  breach  of  contract  by 
the  fact  of  the  action  being  brought  in  the  form  of  an 
action  for  tort.  Whether,  therefore,  an  infant  is  or  is  not 
liable  in  an  action  in  form  ex  delicto,  depends  in  each 
case,  not  upon  the  form,  but  upon  the  true  nature  of  the 
action.  He  is  liable,  if  it  be  in  reality  an  action  for  tort ; 
he  is  not  liable,  if  it  be  in  substance  an  action  for  breach 
of  contract.  Thus  an  infant  can  not  be  charged  on  the 
custom  of  the  realm  as  a  common  innkeeper;  he  can  not 
be  sued  for  breach  of  duty  as  a  carrier ;  nor,  it  is  said, 
can  he  be  made  liable  for  the  conversion  of  goods,  if  the 
cause  of  action  is  grounded  on  a  matter  of  contract  with 
the  infant,  and  constitutes  a  breach  of  contract  as  well  as 
a  tort,  [d)  On  the  same  principle,  where  an  infant  hired 
a  mare,  and  injured  it  by  immoderate  riding,  it  was  held 

that   the   plea   of  infancy  was   an   answer   to    the 
[475]   action,  the  action  being  founded  on  a  contract,  (e) 

But  where  an  infant  hired  a  horse,  on  the  terms 

(■i)  An  infant  has  exactly  the  same  rights  of  suing  as  are  possessed  by  persons 
not  infants.  He  sues  in  the  name  of  his  next  friend  ;  but  this  is  a  mere  matter 
of  form. 

(6)  And,  of  course,  therefore,  a  person  who  has  attained  his  majority  may  be 
sued  for  torts  committed  during  infancy. 

(<•)  See  anfe. 

{d)  Manby  v.  Scott,  i  Lev.  4  ;  2  Smith,  L.  C,  6th  ed.,  396. 

(e)  Jennings  v.  Cundall.  8  T.  R.  335. 


INFANTS.  499 

that  It  was  to  be  ridden  on  the  road,  and  not  over  fences 
in  the  fields,  and  having  got  possession  of  the  horse,  lent 
it  to  a  friend,  who  took  it  off  the  high  road,  and  in  the 
endeavor  to  jump  it  over  a  hedge  killed  it,  the  infant  was 
held  to  have  committed  a  wrong,  and  to  be  responsible  in 
damages  for  the  value  of  the  horse.  (/) 

Exception. — Where  fraud  closely  connected  with  a  contract. 

An  infant,  can  not  be  made  liable  for  a  distinct  fraud, 
if  it  to  be  closely  connected  with  a  contract.  Thus,  an 
action  at  law  will  not  lie  against  a  person  for  fraadulently 
representing  himself  of  full  age,  and  thereby  inducing  the 
plaintiff  to  contract  with  him.  {g) 

(/)  Bernard  v.  Haggis,  4  C.  B.,  N.  S.  45  :  32  L.  J.  189,  C.  P. 

ig)  Price  V.  Hewitt,  8  Ex.  146;  Liverpool  Adelphi  Loan  Association  v. 
Fairhurst,  9  Ex.  422  ;  23  L.  J.  163,  Ex. ;  Bartlett  v.  Wells,  i  B.  &  S.  836  ;  31 
L.J.  57.Q  B. 


50O  PARTIES     TO    ACTIONS. 


CHAPTER  XXX. 

HUSBAND  AND  WIFE. 

Rule  107.  {a) — A  husband  and  wife  must  be 
sued  jointly  for  all  torts  committed  by  the  wife  either 
before  marriage  or  during  coverture. 

A  woman  is  liable  for  all  torts  committed  by  her  as 
well  before  as  after  her  marriage.  If,  that  is  to  say,  Y. 
assaults  A.,  trespasses  on  his  land,  or  defrauds  him,  she 
does  not  get  rid  of  her  liability  by  marriage  with  X.  ;  nor 
is  she  free  from  responsibility  for  torts  committed  during 
coverture,  whether  they  are  committed  by  herself  alone, 
or  when  acting  together  {b)  with  X.  Though  Y.  during 
coverture  can  not  be  sued  alone,  and  must  be  sued,  if  at 
all,  together  with  X.,  yet  when  X.  and  Y.  commit  a  joint 
tort,  the  plaintiff  has  the  choice  of  either  suing  X.  and  Y. 
jointly,  (which  is  in  effect  to  bring  an  action  against  Y.) 
or  of  suing  X.  singly.  But  for  what  is  merely  the  tort 
of  the  wife,  whether  committed  before  or  after  marriage, 
an  action  can  not  be  brought  against  X.  alone. 

Torts  fonnded  oil  contract. — A  married  woman  cannot 
be  made  responsible  for  breaches  of  contracts  made  with 
her  during  coverture,  by  being  sued  for  such  breaches  in 
the  form  of  an  action  for  tort,  {c) 

Exception. — Where  fraud  closely  connected  with  a  contract. 

A  woman  is  not  liable  either  during  coverture^ 

[477]    or  after  her  husband's   death,  to  be  sued   for  any 

fraud    committed    during   coverture,    which    is   so 

(a)  For  the  rule  that  a  married  woman  cannot   be  sued   alone  during  cover 
ture,  and  the  exceptions  to  it,  see  ante. 
(6)  Catterall  v.  Kenyon,  3  Q.  P..  310. 
(<•)  As  to  a  married  woman's  incapacity  of  cnnliacting,  sec  ante. 


HUSBAND    AND     WIFE.  501 

closely  connected  with  a  contract  as  to  form  part  of  the 
same  transaction.  Thus,  the  question  was  raised,  {d) 
whether  an  action  would  lie  against  a  husband  and  wife 
for  a  false  and  fraudulent  representation  by  the  wife  to 
the  plaintiffs,  that  she  was  unmarried  at  the  time  of  her 
signing  a  promissory  note  as  a  surety  to  them  for  a  third 
person,  whereby  they  were  induced  to  advance  money  to 
that  person,  and  it  was  held  that  the  action  was  not  main- 
tainable. "  A  feme  covert  is  unquestionably  incapable  of 
binding  herself  by  a  contract ;  it  is  altogether  void,  and 
no  action  will  lie  against  her  husband.  But  she  is 
undoubtedly  responsible  for  all  torts  committed  by  her 
during  coverture,  and  the  husband  must  be  joined  as  a 
defendant.  They  are  liable,  therefore,  for  frauds  com- 
mitted by  her  on  an)^  person  as  for  any  other  personal 
wrong.  But  when  the  fraud  is  directl}^  connected  with 
the  contract  with  the  wife,  and  is  the  means  of  effecting  it, 
and  parcel  of  the  same  transaction,  the  wife  can  not  be 
responsible,  or  the  husband  be  sued  for  it  together  with 
his  wife.  If  this  were  allowed,  it  is  obvious  that  the  wife 
would  lose  the  protection  which  the  law  gives  her  against 
contracts  made  by  her  during  coverture,  for  there  is  not 
a  contract  of  an}' kind  which  a  feme  covert  could  make 
whilst  she  knew  her  husband  to  be  alive,  that  could  not 
be  treated  as  a  fraud  ;  for  cver}^  such  contract  would 
involve  in  itself  a  fraudulent  representation  of  her  capacity 
to  contract."  (r)  Where,  again,  a  married  woman  fraudu- 
lently represented  to  the  plaintiff,  that  a  bill  was  accepted 
bv  her  husband,  and  thereby  induced  the  plaintiff  to  dis- 
count it,  the  Court  of  Common  Pleas  were  divided  in 
opinion  on  the  question,  whether  an  action  could  be 
maintiiined  against  the  wife  and  husband.  (/) 

Effect  of  dcatli.~C>x\  the   death   of  the   husband    [478 J 
the    wife   remains  liable   (subject  to   the  exception 
already  mentioned)  for  all  torts  committed  by  her  before 

(d)  Fairhurst  v.  Liverpool  Loan  Associ.ition,  ()  Ex.  422  ;  23  L.  J.  163,  Ex. 

(<■)  Ibid.,  23  L.  J.  164,  i()5,  Ex.  jiKlgmcnt  of  roi.r.ocK.  C.  U. 

</)  Wright  V.  Leonard,  11  C.  H.,  N.  S.  258  ;  30  L.  J.  3<>5.  C.  P.  ;  Johnston 
r.  Pye.  1  Lev.  i6g ;  S.  C,  i  Keb.  913  ;  Cooper  v.  Wiih.in,  i  Lev.  247  ;  Can- 
nam  v.  Farmer,  3  Exch.  608. 


502  FAKlJhS     TO     ACTIONS. 

or  after  marriage.  "  As  a  general  rule  a  married  woman 
is  answerable  for  her  wrongful  acts,  including  frauds,  and 
she  may  be  sued  in  respect  of  such  acts  jointly  with  her 
husband,  or  scj^arately  if  she  survives  him.  The  liability 
is  hers,  though  living  with  her  husband ;  it  must  be 
enforced  in  an  action  against  her  and  him,  which  to  charge 
him  must  be  brought  to  a  conclusion  during  their  joint 
lives."  {£) 

On  the  death  of  the  wife  the  liability  to  be  sued  for 
her  torts  survives,  if  at  all,  against  her  representative  ; 
her  husband  is  not  liable  for  any  tort  committed  by 
her.  [Ji) 

Effect  of  divorce. — A  divorce  leaves  the  wife  liable,  and 
frees  the  husband  from  responsibility  for  all  torts  com- 
mitted by  her.  "  I  think  a  husband,  after  he  has  been 
divorced  from  his  wife,  is  not  liable  for  a  tort  committed 
by  her  during  the  coverture.  .  .  .  During  the  cover- 
ture the  wife  has  in  law  no  separate  existence,  and  she 
can  neither  sue  nor  be  sued  in  any  court.  For  any  wrong 
committed  by  her  she  is  liable,  but  because  she  has  no 
separate  existence  she  can  not  be  sued  alone,  and  her 
husband  must  be  joined  with  her.  If  the  wife  dies  after 
an  action  has  been  commenced  against  her  and  her  hus- 
band, the  action  abates  ;  but  if  the  husband  dies,  then  the 
action  goes  on  against  her.  It  is  clear,  therefore,  to  my 
mind  that  the  only  reason  why  the  husband  is  joined  at 
all  in  such  an  action  is  from  the  disability  of  the  wife  to 
sue  or  be  sued  alone.  But  as  soon  as  there  has  been  a 
divorce  a  vinculo  matrimonii,  that  disability  ceases  ;  she 
is  in  the  same  position  as  if  she  had  never  been  married, 
and  the  husband  ought  no  longer  to  be  joined. 
[479]  Where  the  marriage  is  not  dissolved,  but  the  parties 
are  judicially  separated,  then  it  is  necessary  to  make 
some  provision  for  a  state  of  things  not  recognized  by  the 
common  law ;  for  Head  v.  Briscoe  (/)  is  an  authority  that 
for  wrongs  committed  by  the  wife  during  coverture,  the 

(.f)  Wright  V.  Leonard,  30  I..  J.  367,  C.  P.,  judgment  of  Willes,  J. 
{^h)  Except,  of  course,  torts  which  she  may  have  committed  as  his  agent. 
(i)  5  C.  &  P.  484. 


HUSBAND    AND     WIFE.  503 

husband  is  jointly  liable,  even  though  they  might  be  liv- 
ing entirely  separate.  This  was  done  by  the  provisions 
of  the  20  &  21  Vict.  c.  85.  .  .  .  But  there  was  no 
necessity  to  make  any  analogous  provision  for  a  dissolu- 
tion of  marriage  for  which  the  common  law  is  suffi- 
cient." {k) 

{k)  Capel  V.  Powell,  34  L.  J.  16S,  C.  P.,  judgment  of  Erie,  C.  J.  For  the 
effect  of  errors  as  regards  joinder  of  parties  in  actions  against  husband  and  wife, 
see  Rule  69,  which  applies,  mutatis  mutandis,  to  actions  for  tort. 


504  PARTIES     TO    ACTIONS. 


CHAPTER   XXXI. 


BANKRUPT    AND  TRUSTEE. 


Rule  ioS. — A  bankrupt  can  be  sued  both  before 
and  after  obtaining  an  order  of  discharge  for  all  torts 
committed  by  him. 

A  discharge  in  bankruptcy  is  no  defense  to  an  action 
for  tort,  {a) 

Torts  founded  on  contract. — It  is  said  that  even  where 
the  plaintiff  may  at  his  choice  sue  either  for  breach  of 
contract  or  in  the  form  of  an  action  for  tort,  the  discharge 
is  no  bar  to  the  action  if  he  chooses  to  sue  in  the  latter 
form,  {b)  unless,  indeed,  he  has  already  proved  for  his 
claim,  in  which  case  he  will  be  taken  to  have  elected  to 
waive  the  tort,  {c) 

It  may  be  open  to  doubt  whether  the  present  Act, 
which  in  effect  makes  all  claims  proveable  which  are 
grounded  on  contract,  may  not  make  the  order  of  dis- 
charge a  bar  to  any  claim  which,  in  whatever  form  the 
action  be  brought,  is  substantially  a  claim  for  compensa- 
tion for  a  breach  of  contract.  (</) 

(d)  Bankruptcy  Act,  1869,  ss.  31  and  49. 

(b)  Parker  v.  Crole,  5  Bing.  63. 

(c.;  Griffith  &  Holmes,  Bankruptcy,  2nd  cd.,  964. 

(</)  Compare,  as  to  tilings  in  action.  Bankruptcy  Act,  1869,  ss.  4  and  22. 
The  latter  certainly  suggests  thf  idea  that  the  Trustee  must  sue  for  all  the 
bankrupt's  things  in  action. 


EXECUTORS  AND  ADMINISTRATORS.      505 


CHAPTER  XXXII. 

EXECUTORS    AND    ADMINISTRATORS. 

Rule  109. — The  personal  representatives  of  the 
deceased  (J.  e.,  his  executors  or  administrators)  can 
not  be  sued  for  torts  committed  by  him. 

The  principle  of  the  common  law  that  an  action  for  a 
wrong  does  not  survive,  applies  as  well  to  the  liability 
to  be  sued  as  to  the  right  to  sue.  This  principle  has, 
even  as  regards  the  liability  of  executors,  &c.,  to  be  sued, 
been  greatly  modified  by  exceptions,  but  not  to  the  same 
extent  as  in  its  application  to  their  right  to  bring  an 
action  ;  and  though  the  exceptions  are  nearly  as  extensive 
as  the  rule  itself,  they  are  themselves  subject  to  limita- 
tions, which  make  it  expedient,  for  the  sake  of  clearness, 
to  treat  the  common  law  principle  as  still  forming  the 
general  rule,  and  to  consider  the  modifications  of  it  as 
exceptions. 

If  X.  assaults,  slanders,  or  libels  A.,  or  through  his 
negligence  kills  A.,  and  dies  after  committing  these 
wrongs,  no  action  can  be  brought  against  his  representa- 
tives. So,  again,  if  X.  injures  A.'s  property,  e.  g.,  con- 
verts or  destroys  his  goods,  or  trespasses  on  his  land,  and 
dies  more  than  six  months  after  committing  these  wrongs, 
no  action,  at  any  rate  in  the  form  of  an  action  for  tort,  can 
be  brought  against  X.'s  representatives. 

Exception  i. —  Injuries  to  property  within  3  &  4  Will.  IV.  c. 
42. 

Under  3  &  4  Will.  IV.  c.  42,  s.  2,  actions  may  be 
brought  against  executors  or  administrators  for  any  injury 


5o6  PARTIES     TO    ACTIONS. 

to  property,  whether  real  or  personal,  committed 
[4S2]    by  the  testator  or  intestate  within  six  months  before 

his  death.  Thus,  for  example,  if  a 'testator  or 
intestate  takes  coal  from  the  plaintiff's  land,  and  raises 
part  of  it  within  six  months  before  his  death,  his  executor 
or  administrator  is  liable  to  be  sued  in  trespass  for  so 
much  as  was  raised  within  that  period  ;  {a)  or  should  the 
deceased  obstruct  a  watercourse,  defraud  the  plaintiff, 
convert  his  goods,  {b)  or  in  any  other  way  injure  the 
plaintiff's  property,  the  representatives  of  the  wrong-doer 
will  be  Hable  to  be  sued,  provided  the  wrong  were  com- 
mitted within  six  months  of  his  death,  {c) 

The  action  must  be  brought  within  six  calendar 
months  after  the  executors  or  administrators  have  taken 
upon  themselves  the  administration  of  the  estate  and 
effects  of  the  deceased  ;  {d)  and  these  six  months  date  not 
from  the  death  of  the  deceased,  but  from  the  time  when 
the  representatives  have  taken  upon  themselves  the 
administration  of  his  estate. 

Exception  2. — Actions  for  dilapidations. 

At  common  law,  independently  of  any  statute,  an 
action  may  be  brought  for  dilapidations  against  the  exec- 
utors of  an  ecclesiastical  person  by  his  successor.  (<?) 

Exception  3. — Actions  for  tort  brought  in  the  form  of 
actions  on  contract. 

This  is  an  exception  in  reality,  but  not  in  form. 

In  order  to  avoid  the  rule  that  actions  for  wrongs  do 
not  survive,  actions  were  often  brought  in  the  form  oi 
actions  for  breach  of  contract,  though  in  reality  grounded 
on  a  tort.     Thus,  though  an  action  on  the  custom  of  the 

{a)  Powel  V.  Rees,  7  A.  &  E.  426. 
{b)  Richmond  v.  Nicholson,  8  Scott,  134. 
{c)  See  2  Williams,  Executors,  6th  ed.,  1602,  1603. 
{d)  3  &  4  Will.  IV.  c.  42,  s.  2. 

(e)  2  Williams,  Executors,  6th  ed.,  1603.  See,  as  to  a  devastavit,  4  &  5  W 
&  M.,  c.  34,  s.  12  ;  2  Williams,  Executors,  6th  ed..  isqq 


EXECUTORS  AND  ADMINISTRATORS.      507 

realm  against  a  common  carrier  was  considered  (/) 

to  be  an  action  for  a  tort,  and  therefore  not  to  lie   [483] 

against  a  carrier's  executors,  an  action  for  breach 

of  the  contract  to  carry  safely,  could  be  brought  against 

them  for  the  same  cause,  {g) 

(/)  See  autf. 

{g)  Powell  V.  Layton,  2  N.  R.  370.  See  Cowp.  375.  Collen  v.  Wright,  7 
E.  &  B  301  ;  26  L.  J.  147,  Q,  B.;  8  E.  &  B.  647;  27  L.  J.  215,  Q.  B.  (Ex. 
Ch.). 


5o8  PARTIES     TO    ACTIONS. 


CHAPTER    XXXIII. 

EJECTMENT. 
A. — PLAINTIFFS. 

Rule  no. — The  claimant  (a)  or  plaintiff  in  eject- 
ment must  be  a  person  who  has  the  legal  right  to 
enter  and  take  possession  of  the  land,  &c.,  in  respect 
of  which  action  is  brought,  as  incident  to  some  estate 
or  interest  therein,  (b) 

Nature  of  ejectment. — Ejectment  is  the  action  by  means 

of  which  a  person  who  is  kept  out  of  possession  of  land 

(or  of  corporeal  hereditaments)  {d^  which  he  has  a 

[485]   right  to  enter  upon  or  can  have  the  wrongful  pos- 

(a)  Claimant  is  the  technical  term  for  a  plaintiff  in  ejectment.  In  explain- 
ing this  and  the  following  rules,  the  general  term  plaintiff  is  usually  employed. 

{b)  See  Cole,  Ejectment,  65,  72.  He  adds  the  words  "  not  barred  or  extin- 
guished by  the  Statute  of  Limitations."  As  where  a  right  is  barred  or  extin- 
guished it  can  not  be  strictly  said  to  exist,  these  words  are  unnecessary  for  the 
purpose,  at  any  rate,  of  the  present  rule. 

((/)  Cole,  Ejectment,  72.  Ejectment  lies  only  for  the  recovery  of  certain 
kinds  of  property,  viz.,  lands,  tenements,  or  incorporeal  hereditaments,  the 
general  rule  being  that  "ejectment  will  lie  to  recover  the  possession  of  anything 
whereof  the  sheriff  can  deliver  possession"  (Selwyn,  N.  P.,  13th  ed.,  627),  and 
in  strictness  will  (subject  to  some  few  exceptions)  not  lie  for  the  recovery  of  any 
property  whereon  an  entry  can  not  be  made  (Ibid.,  614,  615).  It  will,  for 
example,  lie  to  recover  lands,  houses,  a  part  of  a  house,  a  coal  mine,  a  salt  pit, 
an  orchard,  a  vestry,  and  so  forth  ;  but  will  not  lie  for  a  canonry,  which  is  an 
ecclesiastical  office  only,  or  for  things  such  as  an  advowson,  a  common  in  gross, 
which  are  not  capable  of  being  delivered  in  execution.  Thus,  while  it  has  been 
held  to  lie  for  land  covered  with  water,  it  has  been  held  not  to  lie  for  a  stream. 
(For  these  and  other  examples,  see  r  Selwyn,  N.  P.,  13th  ed.,  627,  628.)  Though 
the  decided  cases  mostly  refer  to  the  mode  in  which  property  should  be  described 
in  the  writ,  they  sufficiently  establish  the  principle,  that  ejectment  can  only  be 
brought  for  that  kind  of  property,  e.  g.,  houses,  &c.,  of  which  the  sheriff  can 
give  possession. 


EJECTMENT.  509 

sessors  turned  out  or  ejected,  and  himself  put  into  posses- 
sion by  the  officers  of  the  law. 

Any  person  who  has  an  estate  in  land  (provided  it  is 
not  an  estate  in  remainder  or  in   reversion)  has,  as  one 
of  the  rights  of  property,  a  right  to  enter  upon  his  land, 
or  to  enjoy  the  actual  possession   of  it.     Thus,  suppose 
A.  to  be  the  owner  in  fee  simple,  or  the  tenant  for  life  or 
for  years,  of  a   house,   &c.  ;    he    has   the   right   to   enter 
into  his  house,  and  if  X.  occupies  the  house,  and  keeps 
A.  out  of  possession,  X.  is,   whatever  the  nature  of  A.'s 
estate,  a  wrong-doer.     A.,   if  he  wishes  to  recover  pos- 
session of  his  house,   that   is,  to   occupy  it   himself  and 
turn  X.  out,  can,  if  he  chooses,  simply  enter  and   by  his 
own  hands,  or  those  of  his  agents,  turn  X.  out   of  the 
house  ;  for  A.,  who  has,  in  the  case  supposed,  a  right  to 
enter,  and  also  a  right  to  exclude  X.,  can,  if  he  choose, 
exercise  his  rights  without  requiring  the  intervention  of 
the  law.  [e)     But  tliis  course  is  exposed  to  several  disad- 
vantages, and  can  not  be  adopted  where  there  is  any  doubt 
whatever   as  to  the  title  of  the    person  who   wishes  to 
recover   possession.      A.'s   safest   course   is   to  bring  an 
action  of  ejectment  against  X.,  the  main  object  of  which  is 
to  effect,  by  means  of  the  sheriff  and  his  officers,  the  same 
result  which  might  have  been  directly  effected  by  A.  him- 
self; viz.,  the  putting  A.  into  possession,  and  turning  X. 
out  of  occupation.     If  A.  succeeds  in  the  action,  this  is 
exactly  the  result  obtained,  since,  on  a  judgment  in   his 
favor,  a  writ  is  issued  to  the  sheriff,  commanding  him  to 
put  A.  into  possession.     A.  must  in  order  to  succeed,  show 
a  good  title,  i.  e.,  a  distinct  right  on  his  part  to  enter  into 
the  house  and  turn  X.  out  of  it ;  and   can  not   succeed 
merely  by  showing  that  X.  had  no  right  to  be  in 
the  house,  for  it  is  a  fundamental   principle  in  an    [486J 
actionof  ejectment  that  the  i)laintilf  must  succeed 
on  the  strength  of  his  own  title,  and  not  on  the  weakness 
of  the  defendant's.     Hence  ejectment  raises  the  question 
of  the  plaintiff's  title,  but  the  action  itself  is,  it  must  be 
borne  in  mind,  a  mere  possessory  action.     If  the  plaintiff 

(<•)  See  Cole,  Ejectment,  66-71. 


510  PARTIES     TO    ACTIONS. 

succeeds,  all  that  is  necessarily  proved  is  that  he  has  a 
right  to  be  put  into  possession,  and  if  he  fails  it  does  not 
follow  that  the  defendant  has  a  right  to  possession  either 
against  all  the  world,  or,  at  another  time  against  the 
plaintilT  himself.  The  defendant  X.,  for  example,  may 
answer  A.'s  claim  by  showing  that  some  third  person,  M., 
has  a  right  to  possession,  and  thus  that  neither  X.  nor  A. 
have  such  a  right. 

An  action  of  ejectment  used  to  rest  upon  a  series  of 
legal  fictions  which  it  is  not  within  the  scope  of  this 
treatise  to  explain.  (/)  The  modern  action  under  the 
Common  Law  Procedure  Act,  1852,  is,  in  substance,  the 
old  action  divested  of  the  fictions  on  which  it  depended. 
It  commences  b}"  the  following  writ,  which  combines  to 
some  extent  the  characteristics  of  a  writ  of  summons  and 
of  a  declaration,  and  serves  to  show  who  are  the  persons 
by  and  against  whom  the  actions  must  be  brought. 

"  Victoria,  «&c.  To  X.,  Y.,  and  Z.  [names  of  all  the 
tenants   in   possession],    and    all   persons   {h)   entitled   to 

defend  the  possession  of ,  in  the  parish  of ,  in  the 

county  of ,  to  the  possession  whereof  A.,  B.,  and   C, 

some  or  one  of  them,  claim  to  be  (or  to  have  been  on  and 

since  the day  of ,  A.D. )  entitled,  and  to 

[487]    eject  all  other  persons  therefrom :  these  are  to  will 

and  command  you   or  such   of  you   as   deny   the 

alleged  title,  within  sixteen  days    after  service  hereof  to 

appear  in  our  Court  of ,  to  defend  the  said  property, 

or  such  part  thereof  as  you  may  be  advised;  in  defaul 
whereof  judgment  may  be  signed,  and  you  turned  out  of 
possession."  {i) 

Legal  right. — The  plaintiff  or  claimant  in  an  action  of 
ejectment  must  {k)  have  a  legal  right,  and  a  legal  title 

(/)  See,  for  an  explanation,  3  Steph.,  Com..  726  ;  Cole,  Ejectment,  1-3. 

(h)  These  words  refer  to  landlords,  to  whom  the  tenants  in  possession  ought 
to  give  immediate  notice  when  the  writ  is  served  (C.  L.  P.  A.  1852,  s.  206  ; 
Cole,  Ejectment,  165),  also  to  any  other  persons  not  known  to  the  claimant  to 
be  in  possession  of  any  part  of  the  property,  but  who  may  wish  to  appear  and 
defend  the  action  with  leave  of  the  court  or  a  judge.  Cole,  Ejectment,  124, 
701. 

(i)     C.  L.  P.  Act,  1852,  Sch.  A..  No.  13. 

(i)  See  Rule  3. 


EJECTMENT.  5 1 1 

ts  sufficient,  notwithstanding  that  the  defendant  has  an 
equitable  title.  (/)  Hence,  where  the  legal  estate  is  vested 
in  trustees,  as  where  A.  holds  land  in  trust  for  M.,  the 
action  should  be  brought  in  the  name  of  A.  (;;z)  So  if 
M.  is  a  mortgagor,  and  A.  a  mortgagee,  A.'s  name  should 
be  used  in  suing  X.  If  an  action  is  brought  by  the 
trustee,  A.,  a  lease  from  the  cestui  que  trust,  M.,  can  not 
be  set  up  against  the  trustee  in  any  case  without  the  aid 
of  a  court  of  equity,  (w)  and  an  equitable  defense  can  not 
be  pleaded  in  ejectment,  {o)  As,  generally  speaking,  a 
merely  equitable  title  to  the  land  is  not  sufficient  to 
support  an  ejectment,  (/•)  the  person  who  has  the  legal 
estate,  e.  g.,  a  mortgagee,  may  often  bring  ejectment 
against  the  person  who  has  the  equitable  estate,  e.  g.,  the 
mortgagor.  Thus,  a  mortgagor  who  remains  in  posses- 
sion after  the  execution  of  a  mortgage  containing  no 
proviso  or  stipulation  amounting  in  law  to  a  re-demise,  is 
not  considered  as  a  tenant  from  year  to  year  to  the  mort- 
gagee, nor  even  as  a  tenant  at  will  He  is  at  most 
a  tenant  at  sufferance,  and  may  be  treated  either  as  [488] 
a  tenant  or  as  a  trespasser,  at  the  election  of  the 
mortgagee,  who  may  maintain  ejectment  against  him 
without  any  previous  notice  to  quit,  or  demand  of  posses- 
sion, iq)  The  question  as  to  a  mortgagee's  right  to  bring 
ejectment  against  a  mortgagor,  or  vice  versa,  depends  upon 
the  interest  left  in  the  mortgagor.  If  he  stands  in  the 
position  of  a  tenant  to  the  mortgagee,  as  he  generally 
does,  he  can  not  be  sued  in  ejectment  until  the  tcnnncv 
be  terminated  by  his  default,  or  otherwise  ;  {r)  and  if  he 
be  in  the  position  of  a  tenant,  he   has  the   same  right  to 

(/)  Doe  d.  HugV.es  v.  Jones.  9  ^f .  &  W.  372,  377  :  i  Howl.  N.  S.  352  : 
Fenny  d.  Enstham  v.  Child.  2  M.  &  S.  255. 

(«/)  It  may.  however,  he  convenient  to  join  llie  name  of  X.,  which  can  l.c 
done  in  action  of  ejectment,  see  post. 

(ft)  Baker  v.  Mcllish.  10  Ves.  554  ;  Doc  d.  Davies  v.  Evans,  9  M.  &  W.  4'^- 

(0)  Nt-ave  V.  Avery,  16  C.  R.  328  ;  24  I..  J.  207,  C.  P. 

( f>)  See  Cole.  F-icctment,  73 

(^)  Cole.  Ficcfment.  462;  and  see  Ibid  ,  4^2-  82,  as  to  actions  by  mort- 
gagce  and  bv  mortRaRor. 

(r)  See  C.  I-.  P.  Act,  1852,  ss.  219.  220,  for  spcci:il  provisions  for  the  pro- 
tection of  mortgagors 


512  ,  PARTIES     TO    ACTIONS. 

sue  the  mort^ai^ee  if  the  latter  turns  him  out  of  posses- 
sion, as  evcrv  tenant  has  to  sue  his  landlord  if  the  latter 
dispossesses  him  durim:^  the  tenancy,  since  the  landlord 
does  not,  durino-  the  tenancy,  possess  the  right  of  entry. 

Though  a  merely  equitable  title,  is  not  sufficient  to 
support  ejectment,  a  title  by  estoppel  will  sometimes  do 
as  against  a  tenant  or  other  person  subject  to  the  estoppel. 
{s)  A  cestui  que  trust,  for  example,  may  sometimes  sue 
^A■ith  success  where  the  defendant,  e.g.,  as  being  his  ten- 
ant, can  not  deny  that  the  plaintiff  has  a  legal  right,  {t) 

Right  of  entry. — The  right  to  enter  into  and  take 
possession  of  the  land  is  the  foundation  of  an  action  of 
ejectment.  Anything  which  shows  that  this  right  does 
not  exist  in  the  plaintiff  is  fatal  to  his  success,  and  the 
plaintiff  must  further  possess  this  right  in  virtue  of,  or 
incident  to,  some  estate  or  interest. 

The  right  must  be  a  right  to  the  actual  possession  of 
the  property.  A  right  to  the  rent  is  not  sufficient,  {u) 
the  remedy  in  such  case  being  by  distress,  {x)  or  an  action 
for  rent,  {y)  The  right  to  enter  must  be  imme- 
[489]  diate  ;  that  is  to  say,  if  A.  lets  land  to  B.,  he  can  not 
bring  an  action  of  ejectment  against  X.  during  the 
continuance  of  the  tenancy.  A  reversion  or  future  estate 
is  not  sufficient  to  support  ejectment,  unless  coupled  with 
some  forfeiture  or  defeasance  of  the  previous  estate  in 
possession,  {z)  But  after  the  expiration  of  a  term  or  other 
estate,  the  immediate  remainder  or  reversion  becomes  an 
estate  in  possession,  and  will  warrant  an  actual  entry. 
A.,  for  example,  lets  land  to  B.,  B.'s  tenancy  determines, 
and  X.  after  this  enters  and  takes  possession,  A.  may  then 
sue  X.  An  outstanding  term  is  therefore  sufficient  to 
defeat  an  action  of  ejectment,  and  even  a  mere  tenancy 
from  year  to  year,  implied  from  proof  of  payment  of  rent, 

{s)  Doe  d.  Harvey  v.  Francis,  4  M.  &  W.  331  ;  7  D.  P.  C.  193 

(/)  Cole,  Ejectment,  73. 

(m)  Doe  d.  Costa  v.  Wharton,  8  T.  R.  2  ;  Hill  v.  Saunders,  2  Bing.  II2. 

(x)  Moss  V.  Gallin-ore,  I  Doug.  279. 

iy)  Voller  v.  Carter,  4  E.  &  B.  173. 

(z)  Doe  d.  Wilson  v.  Phillips,  2  Bing.  13  ;  Doe  d.  Wilson  v.  Abel,  2  M.  &  S, 

541. 


EJECTMENT.  513 

and  not  shown  to  have  been  duly  determined  by  a  notice 
to  quit  or  otherwise,  is  sufficient  to  defeat  an  ejectment, 
althoug-h  the  defendant  does  not  pretend  to  derive  any 
title  through  or  under  such  tenants,  or  to  defend  on  their 
behalf,  {a)  unless,  indeed,  he  be  estopped  from  setting  up 
such  outstanding  tenancy.  {Jj) 

The  plaintiff  may  claim  in  the  writ  to  have  been  enti- 
tled on  and  since  the day  of ;  that  is  to  say,  he 

may  claim  to  have  had  a  right  of  entry,  and  therefore  to 
have  been  injured  by  the  defendant's  keeping  possession 
on  and  from  any  day  prior  to  the  issue  of  the  writ  which 
he  chooses  to  name.  The  plaintiff  gains  some  advantages 
by  placing  his  title  as  early  as  possible,  but  the  doing  so 
involves  this  disadvantage,  that  if  a  plaintiff  claim  to  have 
been  entitled  on  and  since  a  specified  day,  he  must  prove 
the  right  of  possession  to  have  been  in  him  on  that  day, 
and  thence  until  the  commencement  of  the  action,  whereas 
the  right  of  possession  may  have  accrued  after  that  date 
and  before  action  brought,  either  by  the  expiration  of  a 
notice  to  quit  or  by  a  demand  of  possession,  or 
from  some  other  circumstance,  {e)  A.  brings  eject-  [490J 
ment  against  X.,  his  tenant,  having  given  him  notice 
to  quit  on  the  ist  of  January  such  notice  expiring,  e.  g., 
on  the  25th  of  March.  Ejectment  is  brought  on  the  26th 
of  March.  If  A.  simply  claims  to  be  entitled,  he  will 
succeed,  since  he  has  a  right  to  enter  on  the  26th.  If  he 
claims  to  be  entitled  on  and  from  the  first  of  January,  he 
will  fail,  since  he  can  not  show  a  right  of  entry  on  that 
day.  (/) 

Plaintiff  after  etitry  remitted  to  his  previous  estate. — The 
plaintiff,  on  being  put  in  possession  of  land,  does  not 
obtain  any  title  other  than  that  which  he  before  possessed. 

(a)  Doe  d.  Wawn  v.  Horn,  3  M.  &  W.  333. 

Kb)  See  Cole,  Kjectment,  288,  289.  Compare  the  rules  as  to  the  person  to 
bring  trespass,  ante. 

(i'l  Cole,  Ejectment  95,  95. 

(/)  Though  an  ejectment  depends  upon  a  right  of  entry,  •'  an  ejectment  for 
non-payment  of  rent  may  sometimes  be  maintained  under  15  &  16  Vict.  c.  76 
(Commr.n  Law  Procedure  Act,  1852),  s.  2to,  where  an  entry  wiiliout  previous 
ejectment  would  not  be  lawful,  no  deman<l  of  payment  having  been  duly  made 
ftccordin^r  to  ihe  provisions  of  the  common  la«."  Cole,  Kjectment,  6q. 
33 


514  PARTIES     TO    ACTIONS. 

He  is  remitted  to  his  previous  estate  ;  that  is  to  say,  he 
becomes  seized  or  possessed  of  the  land  for  such  an  estate 
therein  as  was  legally  vested  in  him  before  and  at  the 
time  of  his  entry.  "  If  he  has  a  freehold,  he  is  in  as  a 
freeholder;  if  he  has  a  chattel  interest,  he  is  in  as  a 
termor  ;  and  in  respect  of  the  freehold,  his  possession 
enures  according  to  right.  If  he  has  no  title,  he  is  in  as 
a  trespasser,  and,  without  any  re-entry  by  the  true  owner, 
is  liable  to  account  for  the  profits."  {g)  His  main  advan- 
tage is,  that  on  being  lawfully  in  possession,  he  can  put 
any  other  claimant  who  wishes  to  turn  him  out,  to  the 
proof  of  title  on  the  claimant's  part. 

In  applying  the  principle  that  a  person  in  possession 
can  put  all  others  to  the  proof  of  their  title,  it  is  necessary 
to  bear  in  mind  the  distinction  between  occupation  and 
possession,  and  that  the  person  relying  on  his  rights  as 
possessor,  must  be  not  only  in  occupation  but  in  legal  pos- 
session. If,  for  example,  X.  enters  into  the  house  of 
[491]  A.  without  any  title,  he  can  not,  simply  from  his 
being  in  the  house,  claim  the  rights  of  a  possessor. 
If  the  question  is,  which  of  two  persons  is  in  possession, 
that  person  must  be  considered  to  be  so  who  has  the  title, 
or,  in  other  words,  the  right  to  the  possession.  "  If  there 
are  two  persons  in  a  field,  each  asserting  that  the  field  is 
his,  and  each  doing  some  act  in  the  assertion  of  the  right 
3f  possession,  and  if  the  question  is,  which  of  these  two 
is  in  actual  possession,  I  answer,  the  person  who  has  the 
title  is  in  actual  possession,  and  the  other  person  is  a  tres- 
passer. They  differ  in  no  other  respect.  You  can  not 
say  that  it  is  a  joint  possession  ;  you  can  not  say  it  is  a 
possession  as  tenants  in  common.  It  can  not  be  denied 
that  one  is  in  possession,  and  the  other  is  a  trespasser. 
Then  that  is  to  be  determined,  as  it  seems  to  me,  by  the 
fact  of  the  title,  each  having  the  same  apparent  actual 
possession.  The  question  as  to  which  of  the  two  really 
is  in  possession  is  determined  by  the  fact  of  the  posses- 
sion following  the  title ;  that  is,  by  the  law,  which  makes 

(g)  Taylor  d.  Atkyns   v.  Horde,  i    Burr.  1 14,  per  Curiam;    see    Doe  cL 
Daniel  v.  Woodroffe,  2  H.  L.  811. 


EJECTMENT.  515 

it  follow  the  title."  (z)  If,  again,  X.  has  entered  into 
occupation  as  the  tenant  or  by  the  permission  of  A.,  he 
can  not  set  up  his  possession  against  the  claims  of  A. ; 
since  in  such  a  case  the  possession  of  X.  is  the  possession 
of  A.,  who,  in  a  legal  point  of  view,  has  never  been  out 
of  possession. 

Particular  persons  zuko  may  bring  ejectment. — As  eject- 
ment may  be  brought  by  any  person  legall}-  entitled  to 
enter  upon  land,  it  may  be  brought  by  partners,  by  a  cor- 
poration, (/)  by  an  infant  (;;/)  or  an  infant's  guardian,  («) 
by  a  husband  and  wife,  {0)  by  a  bankrupt's  trustee,  (/ ) 
and  by  personal  representatives.  (^) 


Rule  hi. — All  the  claimants,  or  plaintiffs,    [492] 
in    whom    the    title    is  alleged  to  be,  should 
join  in  bringing  an  action  of  ejectment. 

All  persons  claiming  to  have  a  title  giving  them  a  right 
of  entry,  and  on  which  therefore  they  can  maintain  eject- 
ment, may  and  should  join  in  the  action,  and  a  verdict 
will  be  given  in  favor  of  the  claimant  or  claimants  enti- 
tled to  recover,  (r)  If,  therefore,  A.,  B.,  and  C.  sue  X. 
in  ejectment  for  the  possession  of  a  house  and  lands, 
there  are  various  verdicts  that  may  be  given.  A  verdict 
may  be  given  in  favor  of  all  of  them  or  against  all  of 
them,  or  in  favor  of  some  of  them,  e.  g.,  A.  and  B.,  and 
against  others ;  or  a  verdict  may  be  given  that  either  all 
or  some  of  the  claimants  are  entitled  to  some  part  only 
of  the  property  claimed,  e.  g.,  to  the  house  but  not  to  the 

(?)  Jones  V.  Cli.ipnian,  2  Exch.  820,  821,  judgment  of  Maule,  J. 

(/)  I  Selwyn,  N.  P.,  13th  t:(l-.  ^24. 

(hi)  Ibid.  ;  Colt,  Ejectment,  584,  585. 

(//)  Il.M.,  583. 

[o)  Doe  d.  Ilellings  V.  IJird,  11  E.-ist,  49. 

(/>)   nankruplcy  Act,  1869,  s.  415,  and  s.  22. 

((/)  Sec  post. 

(r)  The  Common    Law  rrocedure   Act,  1852,  enacts  "  that    the  questional 

the  trial  shall     ...     be  whether  the  statement  in  the  writ  of  the  title  of  the 

claimnnts  is  true  or  false,  and   if  true,  then  which  of  the  claimants  is  entitled, 

nd  whether  to  the  whole  or  part,  and  if  to  part,  then  to  which  jiart  of  the 

roperty  in  question."     .Sect.  180. 


5i6  PARTIES     TO    ACTIONS. 

land.  The  general  rule  as  to  co-owners,  seems  to  be  that 
they  may  either  sue  jointly  and  recover  the  whole  of  the 
property  to  which  they  are  jointly  entitled,  or  that  one 
or  more  of  them  may  sue  without  joining  the  rest,  and 
recover  his  or  their  share  or  proportion  of  the  whole 
property,  (.v) 

Thus,  in  the  case  of  partners,  an  action  for  ejectment 
for  the  recovery  of  real  property  belonging  to  the  firm, 
ought  to  be  brought  in  the  name  of  all  those  persons  in 
whom  the  legal  estate  is  vested  ;  and  if  one  partner  alone 
has  the  legal  estate,  he  should  bring  the  action  in  his  own 
name,  (/)  and  his  title  will  not  be  affected  by  the  circum- 
stance of  rent  having  been  paid  to  the  firm,  and 
[493]    receipts  having  been  given  all  the  partners.     So  if 
one  partner  only  has  made  a  lease  of  the  partnership 
property,  as  his  title  can  not  be  disputed  by  the  lessee, 
ejectment  may  be  maintained  by  him  alone,  {u)     Execu- 
tors stand  in  a  peculiar  position ;  they  are  for  some  pur- 
poses joint  tenants,  and  for  others  tenants  in  common,  and 
it  seems  that  as  the  whole  term  and  estate  is  vested  in  each 
executor,  any  one  or  more  of  them  may  (without  the  others) 
recover  in  ejectment  the  whole  of  the  property,  {v)     But 
in  all  cases  of  doubt  it  is  best  to  join  every  one  who  may 
be  supposed  to  have  a  title,  otherwise  the  defendant  may 
succeed  in  the  action,  by  setting  up  against  the  plaintiffs 
the  better  title  of  some  person  who  has  not  joined.     In 
actions  of  this  description,  persons  can  join    who   could 
not  be  joined  in  an  ordinary  action.     Thus,  if  the  legal 
estate  is  vested  in  trustees,  but  the  action  is  brought  by 
the  cestui  que  trust,   he  should,  if  possible,  first  obtain 
their  authority  or  consent  to  their  names  being  used  as 
plaintiffs;  but  if  they  unreasonably  refuse,  he  should  offer 
to  idemnify  them  against  the  costs  of  the  action,  includ- 
ing  the  defendant's  costs,  and  afterwards  without  their 

{s)  See  Cole,  Ejectment,  2S5,  286  ;  C.  L.  P.  Act,  1852,  s.  180  ;  and  Day,  C. 
L.  P.  Acts,  3rd  ed.,  148. 

(t)  Doe  V.  Baker,  2  B.  Moore,  i8g. 

(«)  See  Lindley,  Partnership,  2nd  ed.,  482,  483. 

\v)  Doe  d.  Stace  v.  Wheeler,  15  M.  &  W.  624  ;  Heath  v.  Chilton,  12  M.  & 
W.  632  •-  Cole.  Ejectment,  534. 


EJECTMENT.  517 

consent  use  their  names  together  with  his  own  as  claim- 
ants. The  trustees  would  not  be  able  to  discontinue  or 
defeat  such  action  without  the  leave  of  the  court  or  a 
judge,  ix)  Such  a  joinder  would,  in  the  case  of  an  ordi- 
nary action,  be,  it  is  conceived,  a  fatal  error,  {y) 

Ejectjneiit  by  one  co-owner  against  another. — If  land  is 
owned  by  several  persons  jointly,  or  in  common,  e.  g.,  as 
joint  tenants,  tenants  in  common,  &c.,  each  is  entitled  to 
enter  upon  and  occupy  it,  {£)  and  such  occupation  is  no 
infringement  upon  the  rights  of  his  co-owners.  Further, 
one  co-owner  of  land  who  merely  occupies  the 
whole  is  not  liable  at  law  (or  in  equity)  to  pay  rent  to  [494] 
che  other  owners  ;  {a)  but  if  one  co-owner  is  actually 
excluded,  or  to  use  the  technical  term,  "  ousted  "  by  the 
others,  he  can  bring  ejectment  for  his  undivided  share ;  {p) 
and,  having  recovered  in  ejectment,  he  can  sue  in  trespass 
for  mesne  profits,  {c) 


B. DEFENDANTS. 

Rule  112. — The  persons  to  be  made  defendants  in 
an  action  of  ejectment,  i.  e.,  to  be  named  in  the  writ, 
are  all  the  tenants  in  possession  of  the  land,  «Slc., 
sought  to  be  recovered. 

The  object  of  the  plaintifT  in  ejectment  being  to  turn 
out  of  possession  the  persons  in  actual  possession  ot  the 
land,  whether  they  claim  to  possess  by  virtue  of  their  own 
title  or  under  the  title  of  another,  it  is  against  them  that 
he  directly  proceeds.     They  arc  the  persons  named  in  the 

ix)  Cole,  Ejectment,  75. 

( /)  Sec  post. 

(s)  Coke.  I.ilt.,  199  1)  ;   i  I.inrilcy,  ['.artnership.  2nd  ed..  70. 

(n)  Wheeler  v.  Home,  VVilles,  20S  ;  McMahuii  v.  lJuri.hcll,  2  rhill.  127  ;  I 
l.indley,  Partnership,  2iid  ed.,  70. 

{b)  Coke,  I-iti.,  199  I),  2(X)  a. 

U)  Ooodtitle  V.  Toombs.  3  Willes,  Il3  ;  I  l-indlcy.  I'artnership,  2nd  cd., 
/o  ;  Doe  d.  Ilellings  v.  llir.i,  ii  Ea-,1.  49  \  I*'"^  "■  "'"■"•  5  >••  -!^  ^V.  564  Cora- 
|jaie,  as  to  right  of  one  co-owner  to  bring  trover.  itnU. 


5i8  PARTIES     TO    ACTION'S. 

writ,  and  upon  them  it  must  be  served,  {d)  Suppose,  for 
example,  that  A.  claims  land  in  the  actual  possession  ot 
X..  who  holds  it  as  tenant  for  years  of  Y.  It  is  against  X. 
and  not  against  Y.  that  A.  directly  proceeds,  i.  e.,  X.  is 
the  person  mentioned  by  name  in  the  writ.  So,  again,  if 
A.  has  let  his  land  to  Y.,  who  has  underlet  it  to  X.,  and 
A.  needs  to  recover  possession,  the  person  against  whom 
he  proceeds  is  the  under-tenant  X.,  and  not  Y.  under 
whom  X.  holds. 

The  persons  to  be  named  in  the  writ  are,  therefore,  all 

the  tenants  in  possession,  i.  e.,  every  person  who 
[495]    occupies,  as  tenant  or  undertenant  (or  as  owner)  {e) 

any  part  of  the  property.  (/)  Even  a  lodger  who 
has  the  exclusive  use  of  certain  rooms  may,  though  it  is 
not  necessary  or  usual  to  do  so,  be  joined  as  a  defendant. 
On  the  other  hand,  mere  friends  and  visitors  of  the  tenant 
in  possession,  his  wife,  children,  and  servants,  do  not 
occupy  as  tenants,  and  therefore  should  not  be  included 
in  the  writ  as  defendants,  i.  e.,  they  are  not  in  possession  ; 
for  the  occupation,  e.  g.,  of  a  servant,  is,  in  contemplation 
of  law,  the  possession  of  his  master,  {g)  though  a  servant 
may  so  act  as  to  render  himself  personally  liable  to  be 
sued  in  ejectment.  {Ji) 


Rule  113. — The  persons  who  have  a  right  to 
defend  in  an  action  of  ejectment  are  any  persons 
named  in  the  writ,  and  any  person  who  is  in  posses- 
sion by  himself  or  his  tenant. 

(</)  C.  L.  P.  Act.  1S52,  s.  170,  provides  a  course  of  proceeding  where  the 
possession  is  vacant. 

{e)  The  word  tenant  as  used  here  may  possibly  cause  some  misunderstand- 
in<:.  vSuppose  that  X.,  who  claims  to  be  the  owner  of  the  fee,  also  occupies  his 
own  land.     He  must  be  sued  as  being  the  tenant  in  possession. 

(/)  Cole,  Ejectment,  75  ;  Doe  d.  Smith  v.  Rowe,  5  Dowl.  254;  Doe  d. 
Williamson  v.  Rowe,  10  Moore,  493  ;  Doe  d.  Darlington  v.  Cock,  4  B.  &  C 
259  •  Doe  d.  Turner  v.  Gee,  9  D.  V.  C.  612 

(^)  Bertie   v.   Beaumont,  16   East,  33  ;   Mayhew  v.  Suttle,  4   E.  &  B.  347 

(/i)  Doe  d.  James  v.  Staunton,  i  Chii.  113  ;  Doe  d.  Atkins  v.  Rowe,  2  Chit 
179  ;  Cole,  Ejectment,  7^' 


EJECTMENT.  51Q 

The  object  of  the  plaintiff  in  ejectment  is  to  obtain, 
not  damages,  but  possession  of  the  land.     He  brings  his 
action  against  the  persons  actually  in  possession,  and  if 
he  succeeds,  e.  g.,  through  their  letting  judgment  go  by 
default,  he  turns  them  out  and  himself  obtains  possession. 
This  may  cause  damage  to  a  person,  who  owns  but  does 
not  himself  actually  occupy  the  land,  and  is  therefore  not 
made  a  party  to  the  action.     A.,  for  example,  brings  an 
action  of  ejectment  against  X.  and  Y.,  who   are   in   the 
occupation  of  land  as  tenants  of  Z.   from   week  to 
week;  Z.  is  not  made  a  party  to  the  action,  the   [496] 
tenants  let  judgment  go  by  default,  and  A.  obtains 
possession.     This  is  obviously  an  injury  to  Z.,  for  he  must, 
in  order  to  regain  possession,  either  enter  and  turn  A.  out, 
or,  in  his  turn,  bring  an  action  of  ejectment  against  A. 
But  the  injury  may  extend  far  beyond   this,  and  Z.  may 
be  deprived  of  his  property,  for  A.  may  have  no  title, 
and,  therefore,  Z.  may  be  able  if  sued  to  resist  his  claim. 
But  Z.'s  own  title  may  be  defective,  and  if,  therefore,  he 
is  once  put  out  of  possession  by  A.,  he  may  be  unable  to 
maintain  successfully  an  action  of  ejectment  against  A., 
or  in  any  way  to  recover  possession  of  the   land.   .  In  a 
case  in  which  it  was  settled  that  a  landlord  has  an  abso- 
lute right  to  defend  an  action  brought  against  his  tenant, 
the   importance   of  the    right   was  thus  pointed   out  by 
Martin,  B.     "  But  it  was  said,  this  is  a  matter  oi  little 
importance,   and  the  only  consequence  [01  not  allowing 
the  landlord  to  defend]    would  be  that  a  person  abroad 
might  be  turned  out  of  possession,  and  he  might  niainlain 
an  action  of  ejectment  himself  and  recover  possession.     1 
ai)j)rehc'nd  a  more  mistaken   view  of  the  law   could   not 
possibly    be  submitted  U)  the  court.     I   ai>prchend   tliat, 
])robably,  one  half  of  the  titles  of  i)crsons  in  this  kingdom 
depend  on  their  being  in  possession.     Bv  the  rule  ol  law, 
the  burden  is  cast  upon  the  lessor  of  the  plaint  ilf  \\\  eject- 
ment of  making  out  his  title.     And  how  many  i)crsons  are 
there  whose  titles  are  perfectly  unassailable?     No  |)crson 
can  meddle  with  or  turn  them  out,  because  they  would  be 
utterly  unable  to  do  it  by   reason   of  detective  evidence 


520  PARTIES     TO     ACTIONS. 

and  a  variety  of  other  matters  that  may  impede  the 
establishment  of  all  rights;  and  so  far  from  the  circum- 
stance of  a  person  being  turned  out  of  possession  being  a 
matter  of  little  importance,  it  is  of  the  utmost  importance 
to  the  security  of  landed  property  that  persons  should 
not  be  turned  out  of  possession,  unless  some  clear  proof 
is  given  against  them,  upon  which  the  person  so  claiming 

succeeds."  {k) 
[497]         To  ensure  that  all  the  persons  interested  in  the 
defense  shall   have  an  opportunity  of  resisting  the 
plaintiffs*  claim,  the  law  has  given  to  two  classes  of  per- 
sons a  right  to  be  defendants. 

Pcrso?is  named  in  the  writ. — All  the  persons  in  actual 
occupation  of  the  land  claimed,  must,  as  already  pointed 
out,  be  named  in  the  writ  and  made  defendants.  The 
persons  so  named,  even  if  it  happened  that  some  of  them 
ought  not  to  have  been  named,  have  a  right  to  defend  ;  (/) 
and  each  of  the  persons  so  named  must  be  served  with 
the  writ. 

Persons  not  named  in  the  writ. — Every  tenant  to  whom 
a  writ  in  ejectment  is  delivered,  or  to  whose  knowledge 
it  comes,  is  bound  under  a  heavy  penalty  forthwith  to 
give  notice  thereof  to  his  landlord,  or  his  bailiff  or 
receiver,  {in)  Security  is  thus  provided,  that  the  land- 
lord shall  know  of  any  action  of  ejectment  being  brought 
to  obtain  possession  of  property  in  which  he  has  an  inter- 
est. But  this  is  not  in  itself  a  sufficient  protection ;  for 
though  a  defense  by  the  tenant  would  be  a  good  defense 
by  the  landlord,  a  landlord  can  not  compel  his  tenants,  on 
whom  the  writ  is  served,  to  appear  and  defend  the  action, 
or  to  allow  him  to  do  so  in  their  names,  {n)  It  is,  there- 
fore, enacted  that,  "  Any  other  person  not  named  in  such 
writ,  shall,  by  leave  of  the  court  or  a  judge,  be  allowed  to 
appear  and  defend,  on  filing  an  affidavit  showing  that  he 
is  in  possession  of  the  land,  either  by  himself  or  his  ten- 

{k)  Butler  V.  Meredith,  24  L.  J    246,  Ex.,  judgment  of  Martin,  B. 
(/)  C.  L.  P.  Act,  1852,  s.  171  ;  Cole,  Ejectment,  123, 
{m)  Ibid.,  s.  209. 

(m)  Doe   d.  Turner   v.  Gee,  9  Dowl.   612  ;  Right    v.  Wrong,   Barnes,  173  ; 
Cole,  Ejectment,  123. 


EJECTMENT.  521 

ant."  io)  Under  this  provision,  any  person  has  a  right  to 
defend  (/)  who  can  satisfy  a  judge  that  either  he  is  him- 
self in  possession,  or  that  his  tenants  are  in  possession. 
If  the  persons  named  in  the  writ  wish  to  defend,  the 
person  not  named  is  made  co-defendant  with  them. 
If,  on  the  other  hand,  the  persons  named  are  not  [498J 
willing  to  defend,  the  person  applying  for  leave  to 
defend  is  made  defendant  in  their  place,  {q) 

(tf)  C.  L.  P.  Act,  1852,3.  172. 

(/)  See  Butler  v.  Meredith,  ii  Ex.  85  ;  24  L.  J.  239,  Ex. 

{q)  Under  an  earlier  enactment  (ii  Geo.  II.,  c.  19,  s.  13),  to  the  same  effect 
it  has  bem  held  that  any  one  has  a  risjht  to  sue  who  claims  a  title  consistent 
with  the  position  of  the  occupier.  Thus  a  mortgagee  out  of  possession  (Doe  d. 
Tilyard  v.  Cooper,  8  T.  R.  645  ;  Doe  d.  Pearson  v.  Roe,  6  Bing.  613  ;  an  heir 
who  has  never  been  in  possession  (Doe  d.  Hiblethwaite  v.  Roe,  3  T.  R.  783  n.), 
a  devisee  in  trust  in  the  same  position  (Lovelock  v.  Dancaster,  4  T.  R.  122) ; 
the  sublessee  of  boxes  in  a  theatre  (Croft  v.  Lumley,  4  E.  &  B.  608),  have  been 
allowed  to  come  in  and  defend.  But  a  cestui  que  trust  who  has  never  been  in 
posse-^sion  (Lovelock  v.  Dancaster,  4  T.  R.  7S3),  and  a  mere  remainder-man 
<VVhitworth  v.  Humphries,  5  H.  &  N.  1S5),  have  been  refused  leave  to  defend. 
See  further.  Day,  C.  L.  P.  Acts,  3rd  ed.  143,  144 

Trespass  /o>  mesne  pro/its. — As  in  an  action  for  ejectment  no  damages  are 
recoverable  except  as  between  landlord  and  tenant  under  C.  L.  P.  Act.  1S52,  s. 
214,  the  law  has  provided  a  remedy,  by  way  of  supplement  to  the  action  of 
ejectment,  in  an  action  of  trespass  for  mesne  profits.  In  this  action  compen- 
sation may  be  recovered  for  the  use  and  occupation  of  the  proi)erty  recovered 
in  the  ejectment  during  the  period  for  which  it  was  actually  or  constructively 
occupied  by  the  defendant  (Doe  v.  Harlow,  12  A.  &  E.  40  ;  Doe  v.  Challis,  17 
Q.  B.  166),  and  also  such  compensation  as  the  jury  may  give  the  plaintiff  for 
his  trouble  under  the  circumstances  proved  before  them,  or  for  any  damage 
■done  to  the  properly  by  the  defendant,  and  for  the  costs  of  the  previous  .iction 
of  ejectment  (Cole,  Ejectment,  635).  The  plaintiff  or  plaintiffs  in  the  action 
should  be  the  claimant  or  claimants  in  the  original  action  of  ejectment. 

The  defendant  or  defendants  should  be  the  person,  or  all  or  any  of  the 
persons  against  whoni  the  judgment  was  obtained  in  ejectment. 

Any  person  may  also  be  sued  in  an  action  under  whom  the  tenants  in  pos 
session  held  during  the  action,  and  to  whom  notice  of  ejectment  was  duly  given 
under  the  C.  L.  P.  Act,  1852,  s.  209  ;  or  who.  a.s  landlord  or  otherwise,  pro- 
cured the  tenants  in  possession  to  defend  the  ejectment,  or  to  witiiiioUi  the 
possession  of  the  property  from  the  claimant  on  demand  ma«le  by  him. 

The  actiott  is  maintainable  against  any  person  who,  as  under-tenant  or 
otherwise,  has  occupied  llic  property  .after  judgment  obt^iincd  in  ejectment. 

The  action  lies  against  personal  representatives  for  mesne  profits  received 
by  the  deceased  within  six  calendar  months  before  his  dciith  (3  >*  3  Will, 4,  C^2, 
fc.  3).     bee  generally  as  to  thia  action.  Cole.  Ejectment,  637-038. 


523  PARTIES     TO    ACTIONS. 


CHAPTER    XXXIV. 

NON-JOINDER   AND     MIS-JOINDER    OF    PARTIES, 
AND    AMENDMENT. 

Rule  114. — An  action  brought  by  a  wrong  plain- 
tiff, or  against  a  wrong  defendant,  must  fail,  {a) 

If  A.  sues  X.  when  B.  ought  to  have  sued  X,,  or  if  X. 
IS  sued  by  A.  when  Y.  ought  to  have  been  sued,  the  error 
is  fatal,  {b)  For  if  a  wrong  plaintiff  sues,  or  a  wrong 
defendant  is  sued,  either  A.,  the  plaintiff,  is  not  the  person 
whose  rights  have  been  invaded,  or  X.,  the  defendant,  is 
not  the  person  who  has  invaded  A.'s  rights.  It  is,  there- 
fore, impossible  for  A.  to  establish  against  X.  that  inter- 
ference with  his  rights  which  is  the  basis  of  an 
[500]  action,  [c)  This  rule  applies  both  to  actions  ex  con- 
tractu and  to  actions  ex  delicto. 

If  the  error  appears  on  the  pleading,  it  may  be  taken 
advantage  of  by  demurrer,  motion  in  arrest  of  judgment, 
or  error.     A.  declares  against  X.  on  a  contract,  which  on 

{a)  The  errors  which  can  be  committed  in  respect  of  the  parties  to  an  action 
are  of  three  kinds  : — 

1.  The  action  may  be  brought  in  the  name  of  the  wrong  plaintiff,  or  against 
the  wrong  defendant,  e.  g.,  if  A.  sues  X.  when  B.  ought  to  have  sued  X.,  or  if 
A.  sues  Y.  when  he  ought  to  have  sued  X.  ;  or,  what  is  exactly  the  same  thing, 
if  A.  and  B.  sue  X.  when  C.  and  D.  ought  to  have  sued,  or  if  A.  sues  X.  and  Y. 
when  he  ought  to  have  sued  W.  and  Z. 

2.  The  error  may  consist  in  a  non-joinder  of  plaintiffs  or  of  defendants,  /.  e., 
an  action  may  be  brought  by  A.  when  it  ought  to  have  been  brought  by  A.  and 
B.,  or  against  X.,  when  it  ought  to  have  been  brought  against  X.  and  Y. 

3.  The  error  may  consist  of  a  mis-joinder  of  plaintiffs  or  defendants,  /.  <?.,  an 
action  may  be  brought  by  A.  and  B.  when  it  ought  to  have  been  brought  by  A., 
or  against  X.  and  Y.,  when  it  ought  to  have  been  brought  against  X. 

(b)  The  two  points  to  be  considered  in  respect  of  every  kind  of  error  are 
first,  what  is  the  effect  of  the  error  if  unamended  ?  secondly  can  it  be 
amended? 

{c)  See  ante. 


NON-JOINDER    AND    MIS-JOINDER.        523 

the  face  of  the  declaration  appears  to  be  in  point  of  law 
made,  not  with  A.,  but  with  B.  X.  can,  thereupon,  demur, 
&c.  If,  on  the  other  hand,  the  error  appears  at  the  trial 
It  o-ives  rise  to  an  adverse  verdict  or  a  non-suit.  A.  sues 
X.  for  the  price  of  goods  alleged  to  be  sold  by  A.  to  X. 
It  appears  at  the  trial  that  they  were  sold,  not  by  A.,  but 
by  B.  to  X.  There  will,  thereupon,  either  be  a  verdict  for 
X.,  or  else  A.  will  be  non-suited.  In  either  case  the  action 
•will  fail. 

Amendment. — This  error  cannot  be  amended,  for  there 
is  no  power  possessed  either  by  the  court  or  a  judge  to 
substitute  a  right  for  a  wrong  plaintiff  or  defendant,  {d) 

Apparent  Exceptions. — There  are  some  apparent  exxep- 
tions  to  the  general  principle,  here  laid  down.  In  an 
action,  for  instance,  of  ejectment  by  the  cestui  qui  trust, 
the  name  of  the  trustee  has  been  added,  {e)  The  error  in 
this  case  appeared  at  the  trial,  and  the  amendment  con- 
sisted rather  in  the  addition  of  a  party  than  in  the  substi- 
tution of  the  right  for  the  wrong  plaintiff,  and  the  action 
further  was  one  of  ejectment,  in  which  it  seems  always  to 
have  been  held  that  the  court  had  specially  wide  powers 
of  amendment.  A  landlord,  again,  may  in  an  action  of 
ejectment  be  allowed  to  defend,  together  with,  or  in  place 
of  the  tenant  in  possession.  But  such  landlord,  though 
not  mentioned  by  name  in  the  writ,  is  in  fact  one  of  the 
parties  to  the  action,  being  sued  under  the  general  descrip- 
tion of  one  of  the  persons  entitled  to  defend  the  posses- 
sion. 

Where,  further,  a  foreign  company  sued  in  a  corpo- 
rate name,  and  the  defendants  pleaded  that  it  was  not  a 
corporation,  the  court  amended  the  writ  and 
declaration,  by  inserting  the  name  of  a  director  as  [501 J 
nominal  plaintiff,  he  being  by  the  law  of  the  foreign 
country  entitled  to  sue.  (/)  This  case,  as  well  as  that 
of  Blake  v.  Done,  {g)  before  referred  to,  has  been  explained 

{(/)  Cl.iy  V  Oxford.  I-.  K.  2  Kx.  55  ;  36  1-.  j.  15.  Kx. 
(e)  niakc  V.  Done.  7  II.  &  N.  4f>5  :  1i  '-  J-  "»•  **'"• 
(/)  Banca  Nazion.-lc  v.  Mamlnirgcr.  2  II.  &  C.  330. 
(g)  7  M.  &  N.  46s  :  31  I-  I.  iw.  Kx. 


524  PARTIES     TO    ACTIONS. 

on  the  ground  that  "  persons  not  formally  entitled  to  bft 
parties  .  .  .  brought  an  action  to  try  certain  matters 
perfectly  well  known  to  both  sides;"  {h)  and  they  may, 
perhaps,  be  considered  instances  rather  of  formal  amend- 
ment than  of  the  substitution  of  a  right  for  a  wrong 
plaintiff.  The  contrast  between  an  amendment  of  this 
kind,  and  an  amendment  allowing  representatives  to  be 
substituted  as  plaintiffs  for  a  person  dead  at  the  time 
when  the  action  was  commenced,  has  been  drawn  out  in 
the  case  in  which  the  latter  kind  of  amendment  was 
applied  for  in  the  following  judgment  of  Bramwell,  B. 
"  Here  the  plaintiff  is  altogether  wrong,  or  rather,  there 
is  no  plaintiff;  the  man  in  whose  name  the  action  was 
brought  was  dead.  It  can  not  be  said  that  this  was  an 
amendment  '  necessary  for  the  purpose  of  determining  in 
the  existing  suit  the  real  question  in  controversy  between 
the  parties,'  nor  is  this  an  application  made  between  the 
parties  to  the  suit ;  for  there  is  no  plaintiff,  and,  therefore, 
no  existing  suit,  and  no  question  in  controversy  between 
the  parties.  If  we  could  see  some  person  suing  who  had 
a  beneficial  interest  in  the  claim  made,  though  not  legally 
entitled  to  sue,  the  case  would  be  within  the  principle  of 
the  authorities  cited.  But  the  power  of  amendment  is 
limited  to  cases  where  there  was  originally  a  party  suing, 
possessed,  though  with  a  variety  in  legal  description,  of 
the  same  interest  with  the  party  to  be  substituted."  {i) 

[502]  Rule  115. — In  an  action  on  contract; 

I.    A  non-joinder   of    plaintiffs    is,   unless 
amended,  a  fatal  error  ; 

2.  A  mis-joinder  of  plaintiffs  leads  only  to  increased 
costs,  (^k) 

{k)  Clay  V.  Oxford,  L.  R.  2  Ex.  55,  judgment  of  Bramwell,  B. 

(i)  Ibid. 

{k)  Most  of  the  errors  in  the  choice  of  parties  can  be  amended  either  before 
or  at  the  trial  under  the  C.  L.  P.  Act,  1852,  ss.  35-40,  and  C.  L.  P.  Act,  i860,  s. 
19.     The  following  points  should  be  noted: — 

I.  Amendments  should,  except  in  one  or  two  cases,  be  made  by  the  court  at 
a  judge. 


NON-yOINDER    AND    MIS-JOINDER.        525 

Non-Joinder.— \i  A.  sues  where  A.  and  B.  ought  to  sue, 
che  error,  if  it  appears  on  the  pleadings,  gives  rise  to  a 
demurrer,  &c.  ;  if  it  appears  at  the  trial,  gives  rise  to  a 
non-suit,  or  adverse  verdict.  (/) 

The  reason  of  this  is,  that  a  contract  by  X.  to  pay  A. 
and  B.  ;^20,  gives  a  right  to  A.  and  B.  jointly,  but 
does  not  give  a  right  to  each  of  them.  A  contract,  [503 , 
in  other  words,  to  pay  A.  and  B.  is  in  itself  a  differ- 
ent obligation  from  the  obligation  to  pay  either  A.  or  B., 
and,  therefore,  if  A.  alone  sue,  he  can  not  by  showing  a 
contract  to  pay  A.  and  B.  prove  the  existence  of  an  obli- 
gation to  pay  A.  singly.  The  rule  is,  in  fact,  a  rigid 
application  of  the  principle,  that  no  one  can  sue  for  any- 
thing which  is  not  an  infringement  of  his  rights.  A.  and 
B.  have  a  joint  right  to  be  paid  a  certain  sum  of  money, 
and  the  neglect  to  pay  it  gives  them  together  a  right  of 
action,  but  such  neglect  is  not  an  interference  with  any 
right  possessed  by  either  of  them  singly.  (;;/) 

Ajuendment. — The  non-joinder  of  plaintiffs  can  be 
amended  either  before  or  at  the  trial. 

If  the  defendant  pleads  the  non-joinder  of  the  plaintiff 

2.  Amendments  can  be  made  before  or  at  the  trial  tliat  can  not  be  made 
after  verdict  (Wickens  v.  Steel,  2  C.  B.,  N.  S.,  4SS  ;  Rob^on  v.  Doyle,  3  E.  & 
B.  396).  If  a  judge  refuses  to  amend  at  the  trial,  the  remedy  is  to  apply  to  the 
court  for  a  new  trial  (Whitwell  v.  Sheer,  8  A.  &  E.  301).  The  court  will  not 
interfere  if  the  judge  do  not  plainly  appear  to  have  been  wrong  (Sainsbury  v. 
Matthews,  4  M.  &  W.  343).  and  perhaps  can  not  interfere  with  the  exercise  at 
the  trial  of  the  discretion  vested  in  him  (Wilkin  v.  Reed,  15  C  B.  192  ;  23  L. 
J.  193,  C.  P.;  Holden  v.  Hallantyne,  29  L.J.  149,  150.  Q.  15.). 

3.  The  power  to  make  amendments  depends  upon  iis  appearimg  that  no 
injustice  will  be  done  by  the  amendments  (C.  \..  P.  Act,  1S52,  ss.  34,  35,  37). 
Hence,  plaintiffs  will  not  be  added  or  struck  out  unless  the  persons  n  be  so 
added  or  struck  out  consent,  or  unless,  in  the  case  of  mis-joindeii  the  person  to 
be  struck  out  was  originally  introduced  wilhuut  his  consent  (Ibid.,  34,  3^). 
Hence,  again,  plaintiffs  will  not  be  struck  out  or  added  at  the  trial  if  it  appear 
that  they  were  originally  added  or  omitted  to  gain  some  undue  advantngo 
(Ibid..  35). 

4.  C.  L.  P.  Act,  1852,  s.  222,  and  the  analogous  sections  of  the  C.  I-.  P. 
Acts,  1854  and  i860,  do  not  (except,  perhaps,  in  the  case  of  ejectment,  Hlake 
v.  Done.  7  H.  &  N.  465  ;  31  L.  J.  too,  Ex.)  apply  to  amendments  affecting  the 
jomdcr  of  parties.  Kob.sfjn  v.  Doyle,  3  E.  &  H.  396  ;  Wickens  v.  Steel,  2  C.  \\., 
N.  S.,  488  ;  Wilkin  v.  Reed.  15  C.  B.  192  ;  23  I,.  J.  193,  C.  P. 

(/)  Bullcn,  Pleadings,  3rd  cd.,  469. 

(»»)  Compare  Cabell  v.  Vaughan    I  Wms.  Saund.  391  k.  I.  m.  n. 


526  PARTIES     TO    ACTIONS. 

in  abatement,  or  at  or  before  the  time  of  pleading  gives 
notice  in  writing  (;/)  that  he  objects  to  such  non-joinder, 
the  plaintiff  may  amend  without  any  order  on  payment  of 
the  costs  occasioned  by  such  amendment,  {o) 

The  court  or  a  judge  may  order  a  co-plaintiff  to  be 
joined,  either  before  (/)  or  at  {q)  the  trial  ;  provided  in 
the  latter  case  that  the  defendant  shall  not  have  given 
notice  that  he  objects  to  such  non-joinder,  (r) 

Mis-joinder. — Where  an  action  is  brought  by  A.  and  B., 
which  should  be  brought  by  A.  alone,  judgment  may  be 
given  in  favor  of  such  one  (or  more)  of  them  as  are  entitled 
to  recover,  [s)  But  the  defendant,  though  unsuccessful, 
is  entitled  to  any  costs  occasioned  by  the  misjoin- 
der. (/) 
[504] .  The  misjoinder  is  still  fatal,  as  it  would  have 
been  before  the  Common  Law  Procedure  Act, 
1852,  if  it  is  inconsistent  with  the  cause  of  action  alleged. 
A.  and  B.  may,  that  is  to  say,  join  in  suing  when  it  may 
be  supposed  that  the  legal  right  existed  in  both  of  them, 
e.  g.,  when  it  is  conceived  that  they  were  both  members 
of  a  firm  at  the  time  when  a  contract  sued  upon  was  made 
with  the  firm,  and  if  it  turns  out  that  B.  was  not  a  mem- 
ber at  that  time,  judgment  maybe  given  in  favor  of  A. 
alone.  But  they  can  not  join  in  cases  where  the  right 
can  not  be  supposed  to  be  in  both  of  them,  but  where  it 
is  supposed  to  be  in  one  or  other  of  them.  If,  for  exam- 
ple, A.  is  a  bankrupt,  and  B.  his  trustee,  and  there  is  a 

(«)  C.  L.  P.  Act,  1852,  E^.  34-36. 

((?)  Ibid.,  s.  36. 

(  p)  Ibid.,  s.  34. 

iq)  Ibid.,  s.  35. 

(;-)  Ibid.,  s.  35. 

(j)  See  Bremner  v,  Hull,  L.  R.  i  C.   P.  748. 

(/)  C.  L.  P.  Act,  i860,  s.  19.  "  The  joinder  of  too  many  plaintiffs  shall 
not  be  fatal;  but  every  action  may  be  brought  in  the  names  of  all  the  persons 
in  whom  the  legal  right  may  be  supposed  to  exist,  and  judgment  may  be  given 
in  favor  of  the  plaintiffs  by  whom  the  action  is  biought,  or  of  one  or  more  of 
them,  or,  in  case  of  any  question  of  misjoinder  being  raised,  then  in  favor  of 
such  one  or  more  of  them  as  shall  be  adjudged  by  the  court  to  be  entitled  to 
recover,  provided  always  that  tiie  defendant,  though  unsuccessful,  shall  be  en- 
titled to  his  costs  occasioned  by  joining  any  person  or  persons  in  whose  favor 
Judgment  i5  not  given,  unless  otherwise  ordered  bv  the  cnirt  or  a  judge." 


NON.yOINDER    AND    MIS-yOINDER.         ^,27 

doubt  whether  an  action  ought  to  be  brought  by  A.  or  B., 
the  difficulty  can  not  be  got  over  by  suing  in  the  names 
oi  A.  and  B.,  for  it  can  not  be  that  the  leg^l  right  can  be 
treated  as  existing  both  in  the  bankrupt  and  in  his 
trustee,  and  that  even  in  those  cases  where  either  the 
bankrupt  or  the  trustee  may  sue.  {n)  Where  a  declara- 
tion alleged  that  the  administrator  of  M.,  and  B.,  sued  X. 
for  money  payable  by  him  to  A.,  as  administrator,  and  B. ; 
for  money  paid  by  B.  and  M.  in  his  lifetime ;  and  for 
money  lent  by  the  administrator,  &c.,  and  B.,  it  was  held 
that  the  declaration  was  bad  for  misjoinder,  and  that  the 
defect  was  not  cured  by  the  Common  Law  Procedure  Act, 
i860,  s.  19.  {x) 

Thus,  again,  where  an  action  was  brought  by  an  exec- 
utor, together  with  a  person  who  was  not  executor,  and 
there  were  executors  who  were  not  joined,  it  was  held 
{y)  to  be  clear  that  the  action  was  "not  maintainable  by 
the  plaintiffs,  or  either  of  them,  as  executors — for 
this  reason  :  one  of  the  existing  plaintiffs  is  not  an  [505] 
executor.  If  you  leave  him  out,  the  other  is  an 
executor,  yet  not  the  only  executor;  and  the  plaintilT,  by 
declaring  in  this  way,  may  prevent  the  defendant  from 
pleading  in  abatement,  which  otherwise  she  woukl  be 
entitled  to  do.  It  could  never  have  been  the  intention  of 
the  legislature  when  it  says  you  may  leave  out  one  i)lain- 
tiff,  and  give  judgment  for  the  other,  that  it  should  mean 
you  may  give  judgment  for  one  plaintiff,  who  might  have 
been  prevented  from  maintaining  the  action  if  he  had 
been  the  sole  plaintiff  at  first."  {z) 

In  an  action  of  ejectment,  however,  a  trustee  and  a 
cestui  que  trust  who  can  not  have  the  legal  right  in  both 
of  them,  can,  as  already  pointed  out,  be  joined  as  plaintilTs. 
The  judgment  will  be  given  in  favor  of  the  trustee,  {a) 

The  misj(jinder  of  i)laintiffs  in  actions  ex  contractu 
affects — 

(»/)  See  antf. 

(x)    Hellingham  v.  Cl.nrk.  I  15.  &  S.  :i32. 

(  y  )  Stubs  V.  Stubs,  31  L.  J.  510.  Ex. 

(»)   Stubs  V.  Stuljs,  31  L.  J.  5t3,  Ex..  juilyiiviu  -.f  I'.u  \m\vki.i..  B. 

(a)  See  attU. 


528  PARTIES     TO    ACTIONS. 

1st.  Set-off.— The  defendant  can  prove  his  set-off  by 
showini^  that  all  the  parties  named  as  plaintiffs,  e.g.,  A., 
B.,  and  C,  are  indebted  to  him,  or  by  showing  that  the 
plaintiff  or  plaintiffs  who  can  establish  their  right  to 
maintain  the  action,  e.  g.,  A.  and  B.,  are  indebted  to 
him.  (/;) 

2ndly.  Second  actiou. — No  other  action  can  be  brought 
against  the  defendant  X.  by  any  of  the  persons  joined  as 
plaintiffs  in  a  former  action,  e.  g.,  by  A.  or  B.,  &c.,  in 
respect  of  the  same  cause  of  action,  {c) 

Amendment. — The  mis-joinder  of  a  plaintiff  can  be 
amended  by  the  Court,  or  a  judge,  either  before  or  at  the 
trial,  {d) 


[506]  Rule  116. — In  an  action  on  contract; 

I.  A  non-joinder  of  defendants  gives  rise  to 
a  plea  in  abatement ; 

2.  A  mis-joinder  of  defendants  is,  unless  amended, 
fatal. 

Non-joinder. — If  an  action  is  brought  by  A.  against  X., 
which  ought  to  have  been  brought  against  X.  and  Y.,  the 
non-joinder  of  Y.  can  be  pleaded  in  abatement;  that  is, 
X.  can  object  to  Y.'s  not  being  joined.  But  the  non- 
joinder of  Y.  is,  if  not  pleaded  in  abatement,  of  no  conse- 
quence; for  if  X.  is  sued  for  a  breach  of  contract,  his 
liability  is  proved  by  showing  a  contract  made  by  X.  and 
Y.  ((?)  In  other  words,  a  contract  by  X.  and  Y.  makes 
them  liable  to  be  sued  separately,  subject  to  the  right  of 
compelling  the  plaintiff  by  means  of  a  plea  in  abatement 
to  join  the  co-contractor  as  co-defendant. 

The  difference  between  the  effect  of  the  non-joinder  of 

(3)  C.  L.  P.  Act,  !.S6o,  s.  20 

(c)  Ibid.,  s.  21. 

{d)  Ibid.,  1852,  ss.  34,  35. 

[e\  Whelpdale's  Case,  5  Coke,  119  a  ;  Richards  v.  Heatlier,  i  B.  &  Aid.  35  • 
Rice  V.  Shute,  i  Smith,  L.  C,  6th  ed.  511 ;  Cabell  v,  Vaughan,  i  Wms  Saird. 
291  b,  2gi  m. 


NON-JOINDER   AND    MIS-JOINDER.         529 

plaintiffs  and  the  non-joinder  of  defendants  is  clearly 
established,  but  it  is  not  easy  to  account  for  it  satisfac- 
torily. The  ground,  perhaps,  is  that  if  X.  and  Y.  under- 
take to  pay  ;£"20  to  A.,  each  gives  A.  a  right  against  him, 
and  the  contract  can  not  fairly  be  considered  to  be  an 
agreement  that  the  one  of  them  will  pay  only  on  condition 
that  the  other  pays  also.  (/) 

Amendmejit. —  When  the  non-joinder  is  pleaded,  the 
plaintiff  is  at  liberty,  without  any  order,  to  amend  the 
writ  and  declaration,  by  adding  the  name  of  the  person 
named  in  such  plea,  and  may  serve  the  amended  writ  upon 
the  person  so  named,  and  proceed  against  the  original 
defendant  and  the  person  named  in  the  plea,  {g) 

When  the  non-joinder  is  not  pleaded,  the  error  [507] 
can  not  be  amended.  It  is  in  general  of  no  impor- 
tance ;  but  if  of  consequence  at  all,  is  fatal.  Thus,  where 
an  action  was  brought  against  a  husband  alone  for  a  debt 
incurred  by  his  wife  before  marriage,  the  husband  was 
held  not  liable,  and  it  was  further  held  that  the  Court  had 
no  power  to  add  the  wife  as  defendant,  (//)  and  it  appears 
clear  that  neither  the  court  nor  a  judge  have  any  power 
to  remedy  the  non-joinder  of  a  defendant. 

Misjoinder.— \{  X.  and  Y.  are  sued  where  X.  alone  is 
liable,  the  error  is  fatal  unless  amended.  If  it  appears 
on  the  pleadings,  it  gives  rise  to  a  demurrer,  &c.  ;  if  it 
appears  at  the  trial,  to  an  adverse  verdict,  &c. 

Amendment. — The  mis-joinder  of  a  defendant  can  be 
amended  by  the  court  or  judge  before  or  at  the  trial ;  {i) 
but  will  not  be  amended  where  the  party  wrongfully 
joined  is  made  a  co-defendant  on  purpose  to  try  his 
liability. 

(/)  As  to  actions  for  torts  founded  on  contract,  see  post. 

Xf^)  The  Common  Law  Proce.lnrc  y\ct.  1S52,  ss.  3!?,  39,  contains  prorinons 
lo  secure  that  the  defendant  added  be  placed  in  as  good  a  position  lu  if  the 
action  had  originally  been  commenced  against  him,  and  that  the  party  wHoae 
negligence  or  error  causes  the  amendment  shall  in  any  case  pay  the  coit 
of  it. 

(A)  Garrard   v.  Giubelci,   II    C.    15..   N.   S.  616.   832;    31    L.  J.    131.   a?** 

C.  P. 

(«)  C.  L.  P.  Act.  1852,  s.  37. 
84 


530  PARTIES     TO    ACTIONS. 

Rule  i  17. — In  an  action  for  tort; 

1.  A  non-joinder  of  plaintiffs  gives  rise  to  a  plea 
in  abatement ; 

2.  A  mis-joinder  of  plaintiffs  leads  only  to  increased 
costs. 

Non-Joinder. — In  an  action  by  A.  for  tort,  which  ought 
to  be  brought  by  A.  and  B.,  the  defendant  can  plead  in 
abatement  the  non-joinder  of  B,,  or  can  give  notice  that 
he  objects  to  such  non-joinder.  If  he  does  not  do  so,  the 
error  is  immaterial ;  {k)  for  if  the  defendant  does  not 
object  to  the  non-joinder,  he  will  be  liable  for  such 
[508]  portion  of  the  damages  as  was  incurred  by  the 
plaintiff  alone,  though  not  for  more.  (/) 

Amendmetit. — The  rule  is  the  same  as  in  an  action  on 
contract.  (;;/) 

Mis-joinder. — The  rule  is  the  same  as  in  an  action  on 
contract,  {ri) 


Rule  118. — In  an  action  for  tort ; 

1.  A  non-joinder  of  defendants  is  no  error; 

2.  A    mis-joinder   of    defendants  leads    only    to 
increased  costs. 

Non-joinder. — Each  of  several  joint  wrong-doers  being 
separately  liable  for  the  whole  damage  caused  by  the  joint 
wrong,  it  is  no  defense  to  X.,  when  sued  for  a  wrong,  that 
Y.,  who  is  jointly  liable,  has  not  been  sued  with  him.  {0) 

Amendment. — The  non-joinder  of  defendants  can  not  be 
amended,  for  it  is  not  an  error. 

Mis-joinder — If  X.  and  Y.  are  sued  where  X.  alone 
ought  to  be  sued,  Y.   is   entitled   to   a   verdict    and  his 

{k)  Bullen,  Pleadings,  3rd  ed.,  708. 

(/)  Sedgworth  v.  Overend,  7  T.  R.  279  ;  Bloxam  v.  Hubbard,  5  East,  407. 

(/»)  See  ante.  (n)  See  a/idr.  (o)  See  ante 


NON-yOINDER    AND    MIS-JOINDER.         531 

costs ;  but  his  being  wrongly  joined   does  not  affect  the 
liability  of  X.,  the  real  wrong-doer.  (/) 

Amendment. — The  plaintiff  ma}'  always  remedy  the 
error  before  the  trial,  by  entering  a  nol.  pros,  as  to  the 
persons  wrongly  joined,  i.  e.,  by  dropping  the  action  against 
them.  The  error  can  also  be  amended  by  the  court  or  a 
judge  before  or  at  the  trial,  in  like  manner  as  the  same 
error  can  be  amended  in  an  action  on  contract,  {q) 

Exception. — Actions  for  torts  concerning  real  property. 

"  There  is,  it  seems,    a   distinction  between  personal 
actions  of  tort  and  such  actions  when  they  concern 
real  property.     Therefore,  if  one  tenant  in  common    [509] 
only  be  sued  in  trespass,  trover,  or  case,  for  any 
thing  respecting  the  land  held  in  common,  he  may  plead 
the  tenancy  in  abatement."  (r) 

Torts  foundeel  on  contract. — The  answer  to  the  question 
whether  an  action  brought  in  the  form  of  an  action  ex 
delicto,  as  regards  the  rules  for  joinder  of  parties,  is  to  be 
considered  an  action  on  contract  or  an  action  for  tort, 
depends  not  upon  the  form,  but  upon  the  real  character 
and  substance  of  the  particular  action.  Thus  "  where  the 
action  is  substantially  and  necessarily  founded  on  contract, 
the  form  of  it  in  tort  will  not  prevent  the  plaintiff  being 
non-suited  for  the  non-joinder  of  other  persons  inter- 
ested." is)  But  it  must  be  borne  in  mind  that,  as  already 
pointed  out,  differences  of  opinion  exist  as  to  the  true 
character  of  certain  actions.  (/) 

(;>)  Govett  V.  Radnifl};e,  3  East,  62  ;  Bretherton  v.  Wood,  3  B.  &  B.  54  , 
Fozzi  V.  Shipton,8  A.  &  E.  963. 

(7)  See  ante. 

{r)  Cabell  v.  Vaughan,  I  Wms.  Saund.  291  g. 

\s)  Cabell  v.  Vaughan,  l  Wms.  S.uin.i.  291  u  :  and  291  /,  note  ;  Ansci;  v. 
■    Waterhouse,  6  M.  &  .S.  385. 

(/)  See  further.  Bretherton  v.  Wood.  3  B.  &  B.  54  ;  ''o"'  v.  Shipton.  8  A. 
&  E.  693  ;  Govett  v.  Kadnidge.  3  East,  62  ;  Anscll  v.  Waterhouse,  6  M.  &  S 
385  ;  Powell  V.  Layton,  3  B.  i'^  P.  3^)5- 


532  PARTIES    rO    ACTIONS. 


SCHEME  AS  TO  JOINDER  OF   PARTIES^ 

Actions  on  Contract. 

a.  riaintiffs. 

1.  Non-joinder. — Fatal  unless  amended. 

2.  Mis-joinder. — Leads  only  to  increased  costs. 

b.  Defend.mts. 

r.  Non-joinder. — Gives  rise  to  a  plea  in  abatement. 
2,  Mis-joinder. — Fatal  unless  amended. 

Actions  for  Tort. 
a.  Plaintiffs. 

1.  Non-joinder. — Gives  rise  to  a  plea  in  abatemenL 

2.  Mis-joinder. — Leads  only  to  increased  costs. 

h.  Defendants. 

I.  Non-joinder. — Has  no  effect. 

3.  Mis.joinder. — Leads  only  to  increased  costs. 


INDEX. 

[the  references  are  to  the  marginal  paging.] 


Abatement.     See  Bankrutptcy. 

Abatement,  plea  in.         See  Contract,  Non-JOINDER. 

Abjuration  of  realm. 

when  not  returning  from  transportation  amounts  to,  172 
Actions.     See  Chose  in  Action,  Contract,  Joinder,  Tort. 

may  be  brought  by  everyone  not  under  a  special  disability,  I 

division  of,  6 

what  constitutes  cause  of  action,  6 

on  contract,  or  ex  contractu,  8 

for  tort,  or  ex  delicto,  9 

distinction  between  actions  on  contract,  and  for  tort,  6-22 

some  actions   may  be   brought  either   on    a   contract  or   for  tort,    16, 

437 
against  attorneys  or  surgeons  for  vi'ant  of  skill,  16 
against  carriers,  16 
against  bailees,  16 
for   torts  founded  on    contract,  are   in   reality  for  breach    of  contract 

20. 
advantages   and    disadvantages   of   on   suing  on  contract   or  for   tort, 

20,  21,  437,  438 
are  divided  into  "  forms,"  22 
"  forms"  of  action,  22 — 25 
are  divided  into  local  and  transitory  actions,  25 

difference  between,  25,  26 
are  divided  into  actions  for  debt  and  damages,  26,  n.  {q) 
can  only  be  brought  for  Hie  infringement  of  a  right.  28 
may  be  brought  for  any  infringement  of  a  legal  right,  50 
may  i)e  brought  for  causes  arising  out  of  the  jurisdiction,  55 
but  such  acti<ms  must  be  transitory  and  not  local,  55 
may    under   certain    circumstances  be    brought   by   aliens    for   wrong* 

committed  abroad,  55.  56 
in   interpreting  contracts  the  courts   follow  the    lex  loci  ;  but  in   their 

procedure  the  lex  fori,  S*^) 
cmn  not  be  brought  for  a  public  nuisance,  61 

except     by     those    who     h.ave     sustained     particular    damage, 

61-64 
nor  for  a  wrong  which  amounts  to  a  fchmy,  64 


5  34  INDEX.  [  The  references  art 

Actions — Coniin  ued. 

at   any   rate     till    the    wrongdoer  has   been    prosecuted, 

64,  65 
this  rule  does  not  apply  to  actions  under  Lord  CAMPBELL'S 
Act,  65,  406 
the  same  person  can  not  be  plaintifT  and  defendant,  65 

application  of  tiiis  rule,  65,  66,  155 
brought  by  a  wrong  plaintift",  or  against  a  wrong  defendant,  must  fail, 

499 
Administrator.    See  Executors  and  Administrators. 
Advertisement, 

otTering  a  reward,  85,  86 
Agent.     .S>^  Principal  and  Agent. 
Agister  of  cattle, 

may  maintain  trover  for  claim  against  a  stranger,  353 
Alien, 

may  sue  and  be  sued  for  wrongs  committed  abroad,  55 

wh'ire    such   wrongs    are    actionable,   both   by    the    laws    of 
England  and  of  the  country  where  committed,  55-57 
Alien  enemy.     See  War. 

who  is,  3 

can  not  sue  without  license  from  the  Crown,  3,  4 

disabilities  of,  4 

wife  of,  may  be  sued  alone,  296 

though  she  can  not  sue,  172,  296 
Ambassador, 

can  not  be  sued,  5 
Amendment.     See  Mis-joinder,  Non-joinder. 

non-joinder  of  plaintiffs  can  be  amended  either  before  or  at  the  trial, 
503,  508 

so  can  their  mis-joinder,  505,  508 

also  the  mis-joinder  of  defendants,  507,  508 
Animals, 

who  is  liable  for  damage  done  by,  425-427 
Apprentice, 

indentures  of  apprenticeship  discharged  by  adjudication  in  bankruptcy, 

307 
Assignee.     See  Bankruptcy,  Chose  in  Action,  Trustee. 

or  negotiable  instrument  may  sue  in  his  own  name,  99,  117 
Assignment.     See  Chose  in  Action. 

rules  as  to,  99 
Assignor.     See  Chose  in  Action. 
Assumpsit, 

action  of,  24 
Attorney, 

actions  against,  for  want  of  skill  may  be  either  on  contract  or  for  tort 
16 

Bailees, 

actions  against,  may  be  brought  either  on  contract  or  for  toit,  I6 
may  maintain  trover  for  goods  committed  to  them,  352,  353 
whether  they  have  actual  possession,  or  the  right  to  it,  353 
how  bailment  may  be  terminated.  361-366 


lo  marginal  paging,  i  ' /Vx/iJA.  JJJ 

Bailiff.     See  Sheriff. 

Bankruptcy.     See  Husband  and  Wife,  Partners,  Set-off. 

the    trustee    now    occupies   the    same    position   the    assignee    did,    iSg. 

n.  (a) 
on  the  bankruptcy  of  a  firm,  actions  must  be  brought  by  the  trustee  or 

trustees,  159,  3S6 
on  the  bankruptcy  of  one  or  more  partners,  by  the  solvent  partners,  and 

the  trustees  of  the  bankrupcty  partner,  159,  3S6-38S 
bankruptcy  of  one  partner  dissolves    the  firm,  and    makes  the  trustee 

tenant,  in  connection  with  the  solvent   partner,  of  all  tlie  partnership 

property,  160 
semble,    this   doctrine   does   not   altogether   apply   to    unincorporated 

companies,  i6t 
on   bankruptcy   of   husband,  his   trustee  must   sue  with   the  wife  in 

actions  brought  in  her  right,  187,  394,  n.  {c) 
trustee    must   sue  for   the   breach   of  any   contract   made   with  bank- 
rupt before  bankruptcy,  in  which    he  has  both   legal  and  beneficial 

interest,  189 
and  the  bankrupt  himself  can  not  sue,  191,  ig2 
the   trustee  may  sometimes   sue  when  the  bankrupt  could  not,  had  he 

remained  solvent,  193 
this  is  owing  to  the  doctrine  of  relation,  193 
the  trustee  can  not  sue  where  breach  of  contract  injures  the  person  or 

feelings  of  the  bankrupt,  193-195,  199 

or  for  uncompleted  contracts  in  which  the  personal  service  of  the 
bankrupt  is  of  the  essence  of  the  contract,  195-197 
though  the  damages  recovered  in  such  actions  during    the  bankrupcty 

would  become  his  property,  195,  196,  400,  n.  (/) 
either  trustee    or  bankrupt   may  sue  on    contracts  made  during  bank- 
ruptcy, T98 
except  contracts   to  pay  for  the  personal   labor   of  the  bankrupt  per- 
formed after  bankruptcy,  199 
set-off,  199-201 
bankrupt   must    sue     on    contr.-icts    made     after   close    of    bankruptcy, 

201 
when  more  than  one  trustee,  all  must  join  in  suing,  202 
on  death  or  removal  of  trustee  his  rights  pass  to  his  sucessor,  203 
but  it  does  not  cause  an  action  to  abate,  203 
the    bankruptcy    of  a   plaintiff  does    not    cause    the    action     to    abate, 

203 
if  action  wrongfully  brought  by  trustee,  or  bankrupt,  the  eiror   is  (.ital, 

204 
a  liquidation  by  arrangement  may  take  place,  204,  n.  (<i) 
in    an    action    against   joint   debtors,  a  bankrupt   debtor    need    not   be 

joined,  230,  231 
on    the  bankruptcy  of  one   or  more   partners,    the  solvent    partner,  or 

partners,  must  be  sued,  272 
discharged  l)ankrupt  is  not  to  be  sued  on  contracts  made  before  bank 

ruptcy,  306 
except  for 

debts  not  provjiblc  by  the  Court,  308 

debts  contracted  after  notice  of  act  of  bankruptcy,  308 

debts  incurred  l»y  fraud,  308 


536  INDEX.  \Refer,t^e^  art 

Bankruptcy — Conlinucd. 

debt  whereof  forbearance  has  been  obtained  liy  fraud,  309 

Crown  debts,  309 

bailbonds  or  debts  for  offenses  against  the  revenue  laws,  309 

trustee    may  eitlier    disclaim    or   adopt    contracts    relating  to  onerou» 

property,  306 
indentures  of  apprenticeship  may  be  discharged,  307 
undischarged  bankrupt  remains  liable  on  previous  contracts,  309 
trustee  can  be  sued  on  contracts  entered  by  him  as  trustee,  310 
but  not  for  breaches  of  contract  by  the  bankrupt,  272,  273,  311 
trustee  must  sue  for  injuries  to  property  of  bankrupt  committed  before 

bankruptcy,  395,  396 
he  can  even  sue  in  cases  in  which  the  bankrupt   could   not  have  sue-i, 

396,  397 
he  can  not  sue  for  trespass  to  land  before  bankruptcy,  397 
he  may  sue   for  injuries   to   property  of  bankrupt    acquired  uft&r  bank 
ruptcy,  398 
but  if  he  does  not  interfere  the  bankrupt  may  sue,  398 
bankrupt  alone  can  sue  for  injuries  to  his  person,   feeling,  or  reputa- 
tion. 399,  400 
unless  such  injury  be  in  reality  one  to  property,  400,  401 
bankrupt   can   be  sued   both   before   and   after  his  discharge,  for  tortr 
430 
and  probably  even  if  they  were  founded  on  contract,  480 
Baron  and  feme.     See  Husband  and  Wife. 
Bills  and  notes.     See  Principal  and  Agent. 

holders  of,  may  sue  in  their  own  names,  99,  117 
agent  making,  drawing,  &c.,  in  his  own  name,  must  be  sued  on,  252 
if  a  person  accepts  bills  for  himself  and  others  without  authority,  he  is 
personally  liable,  264 

Carriage.     See  Master  and  Servant,  Negligence. 
Carriers. 

actions  against,  may  be  either  on  contract  or  for  tort,  16 

actions  against,  on  the  custom  are  for  tort,  19 

who  should  be  plaintiff  in  actions  agai-.st,  86-90 

may  always  be  sued  either  jointly  or  severally,  233,  n.  (r) 

who  should  sue  in  case  of  conversion  by,  350,  351 

may  maintain  trover  against  a  stranger,  353 
Case. 

action  on,  24 
Chose  in  action.     See  Contract,  Covenants  running  with  the  Land 
Landlord  and  Tenant,  Privity  of  Contract,  Right. 

definition  of,  66,  67,  176-178 

can  not  be  assigned  at  law,  66,  99,  115 

except  by  or  to  the  king,  68 

therefore  assignee  must  sue  in  name  of  assignor,  68-72,  115 

or  if  he  be  dead  in  that  of  his  executor  or  administrator,  I15 
who  is  trustee  for  tlie  assignee,  68,  69 

the  assignment  is  freely  allowed  in  equity,  69 

difference  between  real  and  nominal  plaintiff,  69-72 

the  liability  to  be  sued  can  not  be  assigned,  76,  234 

except  covenants  whicli  run  with  the  land,  77,  119,  236 


U  marginal  paging^  INDEX,  537 

Ohose  in  action — Continued. 

and  except  the  assignment  of  liabilities  in  consequence  of 
marriage,  bankruptcy,  or  death,  77,  128 
assignee  of  a  negotiable  instrument  may  sue  iu  his  own  name,  gg,  117 
the   right  to  bring  an   action  on  a  contract  can  not  be  transferred  or 

assigned,  115 
though  the  interest  in  the  contract  may  be  transferred,  115 
except  contracts  assignable  by  statute,  117 
contracts  assignable  by  custom,  117 
assignment  of  a  debt  by  agreement  of  all  parties,  117 
covenants  which  run  with  the  land,  iig 
assignment  by  marriage,  bankruptcy,  and  death,  128 
of  wife,  does  not  become  the  property  of  husband  till  reduced  into  pos- 
session, 175,  176 
mode  of  reduction  into  possession,  178,  I7g 
the  liability  to  an  action  on  contract  can  not  be  assigned,  234 
except 

where  there  is  a  change  of  credit  by  an  agreement  between  all 

parties,  235 
covenants  between  lessor  and  lessee  which  run  with  the  land, 
236,  237 
right  of  action  for  a  tort  can  not  be  assigned,  382 
the  liability  to  be  sued  for  a  tort  can  not  be  assigned,  43g 
except  sometimes  in  case  of  death,  439 
Clubs.     See  Partners,  Principal  and  Agent. 

the  liability  of  members  of,  is  generally  a  question  of  fact,  not  of  law, 

249 
the  member  of  an  ordinary  subscription  club  is  not  liable  for  the  price 
of  goods  supplied  to  the  steward  according  to  the  order  of  the  com- 
mittee, 249, 250 
how  far  members  of  the  committee  are  liable,  250,  251 
Company.     See  Corporation,  PARTNiiRS,  Uninporporated  Company. 
Consideration.     See  Deed,  Simple  Contract. 
is  necessary  to  support  a  simple  contract,  81 
definition  of,  S2 
the  person   from  whom  it  moves,  must  sue  on  a  simple  contract,  8a, 

83 

and  no  one  else,  78,  82-84 

though  the  contrary  doctrine  was  held  formerly,  84 

exceptions  to  this  rule,  90-101 

a  bare  promise  can  not  be  the  foundation  of  an  action,  99 

is  not  requisite  in  a  deed,  loi 

how  to  deci<le  from  wlioni  it  moves,  106-108 

and  whether  it  be  separate  or  joint,  106-108 
Consignee.     See  Carriers. 
Consignor.     See  Carriers. 
Constables. 

are  to  a  certain  extent  protected  from  actions,  429 
Contract.     See  Action,  Chose  in  Action,  Consideration,  Deed,  Joinokr. 
Privity  of  Contraci-,  .Simple  Conikact. 

action  (jn,  8 

no  stranger  to,  can  sue  or  be  sued  on,  10,  37.  38 

what  is  an  implied,   13  ^ 


538  INDEX.  [Xe/eretuet  arw 

Contra  ct —  Con  tin  ued. 

money  had  and  received,  14 
money  paid,  15 
actions  for  tort  founded  on  contract  are  in  reality  actions  for  breach  ol 

contract,  20 
effect  of  treating  tort  as  breach  of  contract,  20 

breach  of  contract  as  tort.  21,  437 
every  breach  of  is  an  injury,  53 
is  construed  according  to  the  lex  loci,  56 

though  the  mode  of  enforcing  it  is  according  to  the  lex  fori,  56 
no  one  can  sue  for  breach  of,  who  is  not  a  party  to  it,  78 
may  be  either  a  simple  contract,  or  a  specialty,  79 
all   persons   with    whom  one   is  made  must  join  in    an  action  for  the 

breach,  104 
can  not   be  framed  so  as  to  give  the  promisees  the  right  to  sue  upon 

it  both  jointly  and  separately,  no,  ill 
whether  a  contract  is  joint  or  several  is  a  question  of  interpretation  of 

its  terms,  II2 
if  the  words  are  ambiguous,  it  depends   on  whether   the    interests  are 

joint  or  several,  113 
difference  between  a  joint  and  several  interest,  114 
right  of  action  on  a  contract  made  with  several  persons  jointly  passes  to 

the  survivor,  128 
no  one  can  be  sued  on  a  contract  who  is  not  a  party  to  it,  223,  370 

though  it  be  in  the  form  of  an  action  for  tort,  370 
the  person  to  be  sued  on  a  simple  contract  is  the  person  who  promises, 
225 
»r  who  allows  credit  to  be  given  to  him,  226,  227 
except, 

persons  appointed  by  statute  to  be  sued,  228 
actions  quasi  ex  contractu,  or  implied  contracts,  228 
joint  contractors  must  be  sued  jointly,  230 
except, 

where  a  co-contractor  has  become  bankrupt,  231 

where   the   claim   is  barred   against  one   or   more   of  the    joint 

debtors,  231 
where  a  co-contractor  is  resident  out  of  the  jurisdiction,  232 
in  an  Action  against  common  carriers,  232 
in  an  action  against  a  firm  where  there  are  nominal  or  dormant 

partners,  233 
where  a  co-contractor  is  an  infant,  or  a  married  woman,  233 
the  non-joinder  of  a  joint  debtor,  is  only  matter  for  a  plea  in  abatement, 

230,  231 
contractors  may  be  at  once  jointly  and  severally  liable  on  the  same  con- 
tract, 233 
Contractor.     See  Master  and  Servant 

Contribution, 

does  not  exist  between  wrongdoers,  431 

this  rule  does  not  apply  to  a   person   made  a  wrongdoer  by 
inference  of  law  only,  469 
Oontributory  negligence.     See  Negligence,  Tort. 


to  marginal  paging.']  IN]Jh.X,  Cjq 

Corporation, 

can  sue  and  be  sued,  2 
mus:  sue  in  its  corporate  name,  163 
can  not  sue  on  a  contract  not  under  seal,  164 
except  contracts  on  matters  incidental  to  its  business,  165 
or  contracts  relating  to  trivial  matters,  167 
or  contracts  executed  on  the  part  of  the  corporation,  1I7 
or  where  there  is  a  contract  implied  by  law,  i63 
or  contracts  under  the  authority  of  a  statute,  168 
can  not  sue  on  contracts  ultra  vires,  169 

when   being   wound    up,   liquidator    sues   in    the    name   of    the   com- 
pany, 169 
set-off  in  such  case,  i6g,  170 
the   word  "  limited  "  must  be  used  in  all  contracts  by  "  limited  "  com- 
panies, 259 
or  those  signing  them  will  be  personally  liable  in  default  of  pay- 
ment 259 
must  be  sued  in  its  corporate  name,  276 
can  not  be  sued  on  a  contract  not  under  seal,  277 
except  contracts  on  matters  incidental  to  its  business,  277 
contracts  relating  to  trivial  matters,  277 
some  cases  of  implied  contracts,  27S 
contracts  under  the  authority  of  statute,  278 
individual    members    can    not   be   sued   directly   for   the   debts  of  the 

corporation,  276 
except    where    a  company  under    certain   circumstances    carries    on    its 

business  with  an  insufficient  number  of  members,  277 
can  not  be  sued  on  contracts  ultra  vires,  278 
actions  against  winding-up  companies  will  be  stayed,  280-282 
may  be  sued  for  torts,  470 

except  for  some  wrongs  of  which  it  is  manifestly  incapable,  470 
can  it  be  sued  for  fraud  ?  471-473 
Costs.     See  Mis-joinder,  Security  for  Costs. 
Covenant.     See  Deed. 

action  on,  24 
Covenants  running  Tvith  the  land, 
may  be  assi^ncl,  77,  119 
what  they  are, 119-12S 

where  there  is  no  relation  of  lessor  and  lessee,  120 
where  there  is  such  relation,  121 
at  common  law,  only  bound  and  benefited   the  assignees  of  the  lessee, 

121 
but  now   by  statute  32   Hen.  VIII.  c.  34,    they  bind    and    benefit    the 

assignees  of  the  lessor,  122 
must  be  made  with  a  covenantee  wiio   has  an    interest   in    the  land   to 

which  tbcy  refer,  123 
must  concern,  or  "loucli"  the  land,  124 
may  be  annexed  to  different  estates  in  I.ind,  127 
can  not  be  annexed  to  an  cquilnl>le  estate,  128 
must  generally  be  sued  on  by  the  heir,  and  not  llic  executor,  213 
made  by  a  lessor,  pass  to  the  as'iignce  of  the  reversion,  236 
made  by  a  lessee,  pass  to  the  assignee  of  the  term,  236 
on  assij^nmcnt  by  lessor,  he  erases  to  be  liable  <>n,  236 


540  INDEX.  IRe/erenres  an 

Covenants,  Ac. — Contittued. 

original    lessee   is  liable   on  his  express  covenants,   even   after  he   has 
assigned  his  term,  236 

but  only  to  lessor,  not  to  assignee  of  reversion,  237 
assignee  of  lessee  is  only  responsible  so  long  as  he  holds  the  estate,  237 

Damage.     See  Debt,  Injury,  Libkl.  Nuisance,  Slander. 

without  injury  will  not  support  an  action,  28 

what  damage  is  not  injurious,  29  et  seq. 

every  injury  imports  damage,  50 

when  necessary  to  give  a  right  of  action,  52,  61-64 

a  persiHi  is  not  liable  for  damage  which  is  the  remote  or  indirect  result 
of  his  act,  410 

arising  from  goods,  owner  is  liable  for,  425 

but  not  when,  without  his  fault,  they  pass  out  of  his  contiol,  425 

when  caused  by  animals,  who  liable  for,  425-427 
Damages, 

every  breach  of  contract  gives  a  right  to,  even  if  only  nominal,  53 
Damnum.     See  Damage. 

sine  injuria,  28,  421. 
Death.    See  Chose  in  Action,  Executors  and  Administrators,  Husband 

AND  Wife,  Survivorship. 
Debt, 

action  for,  23 

difference  between  action  for  debt  and  action  for  damages,  26,  n.  (/) 
Deed, 

covenantee  only,  must  sue  for  breach  of,  loi 

is  good  without  any  consideration,  loi 

only  parties  to  an  indenture  can  sue  on  it,  102,  103 

they  can  generally  do  so,  whether  they  have  executed  it  or 
not,  102,  103,  105 

persons  who  are  not  parties  may  sue  on  indentures  made  under  8  &  9 
Vict.  c.  106, — 194 

can  not  be  framed  so  as  to  give  the  covenantees  the  right  to  sue  upon  it 
both  jointly  and  separately,  iii 

though  the  covenantors  may  be  both  jointly  and  severally  liable,  II2,  233 

there  is  a  difference  of  opinion  on  this  point,  114,  n.  {e) 

person  to  be  sued  on,  is  the  covenantor,  229 

person  not  a  party  to  an  indenture  may  be  sued  on  it,  330 
if  he  has  executed  it,  not  otherwise,  230 

agent  contracting  by,  in  his  own  name,  must  be  sued,  252 
Detinue, 

action  for,  24 
Devisee.     See  Heir. 

is  liable  where  heir  would  be  liable,  324 

can  not  be  sued  jointly  with  executor,  324 

can  not  sue  for  any  wrong  done  to  deceased,  408 
Divorce.     See  Husband  and  Wife. 
Driving.    See  Master  akt>  Servant,  Negligence. 

Ejectment.     See  Landlord  and  Tenant. 

claimant  must  have  legal  right  to  enter  and  take  possession,  484,  4S7,  488 
form  of  writ,  486 


to  marginal  paging. \  INDEX.  tA\ 

Ejectment — Continued. 
right  of  entry,  4S8 

must  exist  from  date  mentioned  in  writ,  489,  490 
plaintiff  after  entry,  is  remitted  to  his  previous  estate,  490,  491 
who  may  bring  ejectment,  491 

all  plaintiffs  in  whom  title  is  alleged  to  be,  should  join,  492,  493 
one  co-owner  can  not  bring  ejectment  against  another,  493,  494 
all  tenants  in  possession  should  be  joined  in  the  writ,  486,  494,  495 
if  not  joined  they  have  a  right  to  defend,  495-497 

whether    they  are    in    possession    by  themselves  or   theii 
tenants,  495-498 
tenant  served  with  writ,  is  bound  to  give  his  landlord  notice,  497,  498 
who  may  defend  with  him  if  tenant  wishes  to  defend,  497 
or  without  him  if  he  does  not,  498 
trespass  may  afterwards  be  brought  for  mesne  profits,  498,  n.  (^) 
Equitable  interest.     See  Chose  in  Action,  Rights. 
is  not  regarded  in  a  court  of  law,  43 
exceptions  to  this  rule,  45  et  seq. 

assignee  of  chose  in  action  must  sue  in  name  of  assignor,  6S-72,  115 
Equitable  plea, 

in  what  cases  allowed,  45-48 
set-off  to,  or  from  trustees,  46 

only  allowed,  where  Judgment  will   dispose  of  whole  matter  between 
parties,  47,  48 
Eqiutable  replication      See  Limitations,  Statute  of. 
when  allowed,  48-50 

will   not  be  allowed  when  effect  would  be  to  permit  an  action   to  be 
brought  on  a  mere  equitable  right,  49,  50 
Executors  and  Administrators.     See  Heir,  Landlord  and  Tenant,  Set- 
off. 
are  not  liable  to  an  action  at  suit  of  legatee,  42 

unless  they  admit  they  have  received  the  money  and  hold  it  to 
his  use,  42 
sue  on  all  contracts  made  with  the  deceased,  205 
whether  broken  in  his  lifetime  or  after  his  death,  205-207 
except  where  breach  of  contract  merely  involved   personal  suffering  to 
deceased,  208 
and  contracts  limited  to  the  life  of  deceased,  209.  210 
covenants  real  broken  during  life  of  deceased,  211,  213 
on  which  the  heir  must  .sue,  211,  212 
except, 

contracts  on  which  deceased  must   have  sued  jointly  with  others 
214 
must  sue  for  rent  due  before  the  death  of  the  lessor,  213. 
executors  can  commence  action  before  probate,  214 
but  an  administrator  can  not  before  the  grant  of  letters  of  administra* 

tion,  214 
can  carry  on  action  on  the  death  of  the  plaintiff,  215 
must    sue    in    reprcseniative    char.ictcr   on    all    contracts    made    with 

deceased.  216 
but  cither  in   representative  or   personal    ch.iractcr  on   contracts  made 

after  (leccaseij's  death.  2l6-2l3 
•et-off  in  actions  by.  218 


54-  INDEX.  {Reftremt^  ar* 

Executors  and  Administrators— G';///mm^</. 

can  not  join    claims   made  in   representative,  with  claims  made  in  per- 
sonal character,  218,  219 
co-executors  and  co-administrators  must  all  join,  219 
except  where  contract  is  made  with  some  of  them  only,  219,  220 

where  an  executor  renounces  the  executorship,  220 
husband    and  wife  must  sue  jointly  where  wife  claims  as  executrix  or 

administratrix,  174,  179,  iSo,  219 
one  executor  or  administrator  can  not  sue  another,  220 
on  the  death  of  a  co-executor  or  co-administrator,  his  rights  of  action 

pass  to  the  survivors,  221 
the  executor  of  a  sole  or  surviving  executor  represents  the  original  testa- 
tor, 221 
this  rule  does  not  apply  to  administrators,  221,  222 
husband  and  wife  must  be  sued  jointly  when  claim  is  made  against  wife 

as  executrix  or  administratrix,  297 
personal  representatives  may  be  sued  on  all  contracts  made  by  deceased, 

313 
except, 

contracts  limited  to  the  lifetime  of  the  deceased,  315 
covenants  in  law,  not  broken  during  his  lifetime,  315 
contracts  on  which  deceased  must  have  been  sued  jointly  with 
others,  316 
are  not  liable  for  torts,  314 

though  they  may  be  in  actions  quasi  ex  contractu,  314 
an  action  may  be  con.menced  against  an  executor  before  probate,  316 
but  not  against  an  administrator  before  the  grant  of  letters   of  adminis- 
tration, 316,  317 
on  the  death  of  a   defendant,  the   action   may  be  carried  on  against  his 

representatives,  317 
must  be  sued  as  executors  on  contracts  of  deceased,  317 
must  be  sued  as  executors  on  contracts  of  decased, 

but  in   personal   character   on  contracts   made   by  them- 
selves, 318 
unless  made  distinctly  as  executors,  321 
set-oft",  319 

liabilities  under  a  lease,  320,  321 

can  not  be  sued  at  once  in  representative  and  in  personal  character,  322 
co-executors  must  be  sued  jointly,  322,  323 
when  heirs  and  devisees  are  liable,  323,  324 
executors  can  not  be  sued  with  an  heir  or  devisee,  324 
can    sue    for    injuries    to     property    of  deceased    during   his    lifetime, 
402-404 

Dr  to  his /^'.Tiswfl/ property  after  his  death,  406-408 
but  they  can  not  sue  for  injuries  to  his  person,  feelings,  or  reputation, 

404 
except  where  he  was  killed  by  negligence,  404-406 

then   they  can  sue  for  the  benefit  of  certain  relations  named  by 
statute,  405 

who  may  bring  an  action  in  their  own  names,  if  executors  do 
not  sue  within  six  months,  405 
this  action  is   maintainable,  though  the  circums/ances  under  which  the 
death  was  caused  amount  lo  felony,  aof^ 


to  marginal  taqmg.\  INDEX.  r^a 

Executors  and  Administrators — Continued. 

can  not  be  sued  for  torts  committed  by  deceased,  48 1 

except  injuries  to  property  within  3  &  4  Will.  IV.  c.  42, 

481.  282 
actions  for  dilapidations,  4S2 

actions  for  tort  in  forms  of  actions  on  contract,  482,  483 
when  they  should  join  in  ejectment,  492,  493 

False  imprisonment.     See  Tort. 

every  person   unjustifiably  interfering   with  the  liberty  of  another,  is  a 
trespasser,  433 
Pelon,  can  not  sue  in  his  own  right,  2 

but  he  may  as  executor,  trustee,  &c.,  4 
and  he  is  liable  to  be  sued,  4 
Felony, 

where  wrong  amounts  to,  no  action  lies,  64 

at  any  rate  till  the  felon  has  been  prosecuted.  64,  65 
this  rule  only  applies  to  actions  against  the  felon  himself,  64 
it  does  not  apply  to  actions  brought  under  Lord  Campbell's  Act,  foi 
compensating  the  families  of  those  killed  by  accidents,  65,  406 
Feme  covert.     See  Married  Women. 
Finder  of  goods.     .S>f  Trover. 

may   maintain     trover    against    anyone   except    the    real   owner,   354, 
355 
Foreigner.     See  Alien. 

can  sue  and  be  sued  for  wrongs  committed  abroad,  55 

where  such    wrongs   are  actionable   both  by  the  laws  of  England. 
and  of  the  country  where  committed,  55-57 
Foreign  law.     See  Lex  Loci. 

governs  contracts  made  abroad,  56 
is  generally  respected  here,  57 

except  when  in  conflict  with  our  laws  on  religion  or  morality,  57 
Foreign  sovereign, 
can  sue,  I 

but  can  not  be  sued,  5 
Fraud. 

where  principal  is  liable  for  fraud  of  agent,  4.47-449 

Heir.     See  Covenants  running  with  the  Land. 

is  the  real  representative  of  the  deceased,  as  the  executors  and  adminis- 

trators  are  ])ersonal  re])rcsentativcs,  205.  206 

must  sue  on    covenants  real   liroken   during   the   lifetime   of  deceased 

2:1 
may  be  sued  on  certain  contracts  under  seal.  323 
on  contracts  of  record,  323 
on  covenants  real,  323,  324 
can  not  be  sued  jointly  with  executor,  324 
where  heir  is  executor,  separate  actions  may  be  brought  against  him  in 

each  capacity,  324 
can  not  sue  for  any  wrong  tlonc  to  deceased,  408 
Huabanfl  and  Wife.     See  Chosk  in  Action. 

wife  can  nut  sue  without  her  hu.sband,  171 


544  INDEX.  [References  an 

Husband  and  Wife — Conii/nud. 
except 

where  the  husband  is  civilly  dead,  172 

or  has  abjured  the  realm,  172 
or  is  legally  ]")resumed  to  be  dead,  172 
where   the   wife   has   a   "judicial    separation"    or    "protection 
order,"  173 
husband  and  wife  can  not  sue  each  other,  174,  297 
husband  and  wife  must  sue  jointly 

on  contracts  made  by  the  wife  before  marriage,  174,  179 
on  contracts  in  which  the  wife  claims  as  executrix  or  administra- 
trix, 174,  179,  180 
personal  chattels  in  possession  of  wife  generally  become  the  absolute 

property  of  the  husband,  174 
her  choses  in  action  only  become  his  if  and  when  he  reduces  them  into 

possession,  1 75-179 
effect  of  death,  180,  184,  392,  394 

of  divorce,  iSo,  181,  184,  392 
set-off,  iSi,  185 
husband  may  sue  either  alone  or  jointly  with  his  wife 

on  negotiable  instruments  given  his  wife  before  marriage,  181 
on  contracts  made  after  marriage  with  his  wife  alone,  181,  182,  183 
on  contracts  made  after  marriage  with  himself  and  wife,  181,  183 
effect  of  error  as  to  joinder  of  parties,  185-187,  394,  n.  [c) 
when   trustee  of  bankrupt  husband   should  join   with  wife,    187,    394, 

wife  can  not  be  sued  alone,  296 
except, 

where  the  husband  is  civilly  dead,  296 

or  is  legally  presumed  to  be  dead,  296 
where    the    wife   has   a   "judicial    separation"    or    "  protectioi 

order,"  296 
where  the  husband  is  an  alien  enemy,  296,  297 
husband  and  wife  must  be  sued  jointly  in  two  cases,  297 
on  contracts  made  by  wife  before  marriage,  297 
when  a  claim  is  made  against  the  wife  as  executrix  or  adminis- 
tratrix, 297 
effect  of  death,  298,  303,  478  -  . 

divorce,  299,  304,  478,  479 
set-off,  299 

husband  must  be  sued  alone  on  contracts  made  by  wife  during  cover- 
ture, 299 
authority  of  wife  to  bind  her  husband,  300 
when  living  with  him,  300,  301 
when  living  apart  from  him,  301-303 

what  are  necessaries  for  wife,  302,  303 
effect  of  error  as  to  joinder  of  parties,  304,  305 
in  tort  husband  and  wife  must  sue  jointly  in  three  cases,  389 
for  injuries  to  wife  before  marriage,  389,  390 
for  personal  injuries  to  wife  during  coverture,  390-392 
for  injuries  for  which  wife  must  sue  as  executrix,  392 
how    husband    can    recover    for    damage    caused    to  him    by  injary  on 
wife,  390-392 


to  marginal  paging^  IJMUJlA..  SAS 

Husband  and  Wife — Continued. 

husband  may  sue  alone  or  with  wife  for  injury  to  land  of  which  both 

are  seized,  392,  393 
except  in  case  of  permanent  injury  to  wife's  freehold,  393 

when  she  must  join,  393.  394 
husband  sues  alone  for  injuries  to  personal  property,  394 
husband  and  wife  must  be  sued  jointly  for  torts  committed  by  wife  before 
or  after  marriage,  439,  476 
except  torts  founded  on  contract,  476 
or  fraud  closely  connected  with  contract,  476,  477 

Idiot. 

can  sue  and  be  sued,  2 
Infant.     Sfe  Contract,  Tort. 
can  sue  and  be  sued,  2 
when  co-executor,  must  join  in  suing,  219 
if  joint  contractor,  the  other  contractors  must  alone  be  sued,  233,  294 

295 
can  not  be  sued  on  a  contract,  12,  283,  474 
except  contracts  for  necessaries,  284 

and  contracts  in  respect  of  permanent  property,  290 
what  are  necessaries,  285-290 

father  not  liable  for  necessaries  supplied  to  child,  291 
how  far  liable  in  actions  quasi  ex  contractu,  283,  284,  474 
an  adult  can  not  be  sued  on  contracts  made  daring  infancy,  292 
except  contracts  on  which  an  infant  might  be  sued,  292 

contracts  ratified  in  writing  after  full  age,  292 
contracts  connected  with  permanent  property  and  not  repudiated,  293 

294 
may  be  sued  for  torts,  474 

except  torts  founded  on  contract,  21,  474,  475 
or  fraud  closely  connected  with  contract,  475 
Injuria.     See  Injury. 
Injury, 

what  is,  in  a  legal  sense,  28 
breach  of  contract  always  is,  53 
Insolvency.     See  Bankruptcy. 

Joinder.     See  Bankruptcy,  Contract,  Executors  and  Administrators, 
Husband  and  Wife,  Infant,    Mis-joinder,  Non-joinder,  Part- 
ners, Unincorporated  Company. 
all  persons  with  whom  a  contract  is  made,  should  join  in  suing  on   it, 

II,  104 
otherwise  in  case  of  persons  injured  by  a  tort,  li 
all  persons  by  whom  a  contract  was  made  should  be  sued  on  it,  II 
when  partners  in  a  firm  shouH  join  in  suing  on  contracts  luaJe  with  the 
firm,   151-155 

when  on  torts,  384,  38;) 
where  husband  and  wife  should  join,  17.^-180,  389-392 
where  trustee  of  bankrupt  husband  should  join  with  wife,  187,  394  n.  (e) 
when  more  than  one  trustee  in  bankruptcy  all  must  join  in  suing,  202 
co-executors  and  co-arimiuistrators  must  join  in  suing,  219 
except  where  a  contract  is  made  with  some  of  them  only,  219 
85 


546  INDEX.  [Referetiffs  an 

Joinder — Continued. 

where  an  executor  renounces  the  executorship,  220 
joint  contractors  must  be  sued  jointly,  230-233 
co-executors  must  be  sued  jointly,  322,  323 

in  tort  persons  join  in  suing  according  to  their  interest,  380-382 
one,  any,  or  all  of  several  joint  wrong-doers  may  be  sued,  430-435 
the  tort  must  be  joint,  431 
what  w  rongs  can  be  joint,  432-435 
torts  founded  on  contract,  437 

persons  sued  as  joint-owners  of  land  must  be  sued  jointly,  438,  469 
all  claimants  in  whom  title  is  alleged  to  be  should  join  in  ejectment, 

492,  493 
all  tenants  in  possession  should  be  joined,  494,  495 
effect  of  mis-joinder  and  non-joinder,  499-509 
Joint  stock  company.     See  Corporation. 
Judge, 

can  not  be  sued  for  acts  done  in  the  execution  of  his  office,  427-429 
Judgment, 

action  may  be  brought  on,  16 

recovered  against  one  of  several  wrong-doers,  when  bar  to  action  against 
others,  436,  437 
Jurisdiction, 

a  person  may  have  a  cause  of  action  for  matters  arising  out  of,  55 
such  action  must  be  transitory  and  not  local,  55 

if  one  joint-contractor  is  resident  out  of,  the  others  may  be  sued  alone, 
232 
Jus  tertii.     See  Trover. 

can  not  be  set  up  by  a  wrong-doer,  356 

unless  plaintiff  relies  not  on  actual  possession  but  on  his  right  to  posses- 
sion, 357 
Justice  of  the  peace.     See  Magistrate. 

King.     See  Sovereign. 

Land.     See  Covenants  running  w^ith  the  Land,  Ejectment,  Landlord 
AND  Tenant,  Nuisance. 
who  is  liable  for  injuries  to,  417,  418 

for  nuisance  on,  422-425 
owners  o(,  must  be  sued  jointly  for  injuries  arising  from,  438 
Landlord  and  tenant.     See  Covenants  running  with  the  Land. 

rent  due  before  the  lessor's  death  must  be  sued  for  by  the  executor,  213 

but  rent  due  afterwards  by  the  reversioner,  213 

executor's  liabilities  under  a  lease,  320,  321 

landlord  and  tenant  may  each  sue  for  damage  done  to  their  respective 

interests  in  the  property,  329,  343 
trespass  must  be  brought  by  tenant  in  possession  and  not  by  landlord, 

339 
but  reversioner  must  sue  for  permanent  injury  to  the  land,  340 
what  constitutes  permanent  injury,  34  -344 

it   generally   also    interferes   with    the   rights   of  the 
tenant,  343,  344 
where  landlord  responsiljle  for  nuisance  on  land,  422,  423 
where  tenant,  424 


to  marginal  paging^  INDEX.  547 

Lemdlord  and  Tenant — Contiinied. 

landlord  is  entitled  to  defend   in   ejectment   whether  named  in    writ  or 
not,  495-498 

tenant    served  with   writ   in  ejectment,  is  bound   to  give  his   landlord 
notice,  497 
Ijegacy.     See  Executors  and  Administrators. 
Legatee.     See  Executors  and  Administrators. 

w  hen  he  can  maintain  an  action  against  an  executor,  42 
Lex  fori.     See  Limitations,  Statute  of. 

governs  the  procedure  in  actions  on  contracts  made  abroad,  56 

conflict  between  lex  loci  and,  58 
Lex  loci.     See  Foreign  Law. 

is  followed  in  interpreting  contracts  made  abroad,  56 

and  generally  in  deciding  whether  a  tort  has  been  committed,  57-61 

conflict  between  lex  fori  and,  58 
Libel, 

is  not  actionable  if  true,  30,  31 
nor  if  privileged,  31 

is  actionable  whether  it  causes  damage  or  not,  54 

every  separate  person  who  publishes,  is  liable,  415 

corporation  may  be  guilty  of,  470 
Xiimitations,  Statute  of, 

to  plea  of.  there  can  not  be  an  equitable  replication,  of  fraudulent  con. 
cealment  of  trespasses  till  within  six  years,  49 

effect  of,   in  contract  made  abroad,  57 

if  claim  .ngainst  one  or  more  joint  debtors  is  barred  by,  the  others  should 
be  sued  alone,  231,  232 
"  Limited  "  Company,     i'^i- Corporation,  Principal  and  Agent. 
Liquidator.     See  Corporation. 
Local  action.     See  .-\ctions,  Jurisdictio.n. 
Lord  Campbell'.s  act.     See  Executors  and  Administrators. 

(9  I.V  10  Vict.  c.  93),  for  compensating  the  families  of  deceased  persom 
killed  by  negligence,  404-406 
Lunatic, 

can  sue  and  be  sued,  2 


Magistrate, 

is  to  a  certain  extent  protected  from  actions,  429 
Marriage.     See  IIushand  and  Wife. 

Married  Woman.     See  Contkact,  Husband  and  Wife,  Tort. 
can  sue  or  be  sued.  2 

is  not  li.ible  for  contracts  made  during  coverture.  13 
but  is  lial)le  for  torts  committed  then,   12,  476 

except  forts  (funded  on  contract.  21,  476 
if  joint  contractor,  the  other  contractors  must  alone  be  sued,  233 
Master  and  Servant.     See  I'kincii'AL  and  Ac.ent. 

master   can   not  sue  railway   com|»any  for  damage   done  to  his  servant 

while  a  passenger,  id 
if  master  employs  servant    to   buy  goods  on  credit,  he  must    p.iy  for  all 

he  buys,  244 
a  horsc-dcnler  is  bound  if  his  servant  warrants  a  horse  without  author 

ity.  245 


548  INDEX.  \ReftreTues  art 

Master  and  Servant — Cotitinued. 

but  not  anybody  else,  unless  he  sends  his  servant  to  sell  it  at  a 
fair  or  mart,  245,  246 
master  may  sue  for  injury  to  servant  if  it  causes  loss  of  service,  326,  331 

and  not  otherwise.  326-329,  331 
he  may  sue  for  the  seduction  of  his  female  servant,  327-329 
servant's  occupation   of  land  in  possession  of  master,  335 
goods  in  custody  of  mere  servant  are  in  master's  possession,  not  ser- 
vant's, 358 
master  can  never  sue  for  what  is  a  mere  injury  to  his  servant,  383 
nor  servant  for  mere  injury  to  his  master,   383 

master  is  liable  for  wrongful  act  of  servant  if  necessary  consequence  of 
obeying  his  master's  orders,  442 
or  for  his  negligence  in  obeying  them,  443,  446 
or  for  an  act  committed  in  the  usual  course  of  employment,  443, 

445 
whether  he  has  given  him  express  authority  or  not,  447 
and  whether  he  has  appointed  the  servant  directly  or  indirectly, 

449 
owner  and  not  hirer  of  carriage  is  master  of  the  servant  driving  it, 

450 
and  is  therefore  liable  for  his  negligence,  450 
the  test  is  by  whom  can  the  servant  be  dismissed?  not  by  whom  is  he 

paid  ?  450 
employer  of  contractor  not  liable  for  contractor's  servants,  450,  451 
unless  he  personally  interferes,  451 
or  the  act  to  be  done  is  unlawful  in  itself,  451,  452 
or  the  damage  arises  from  the  act  itself,  452,  453 
or  unless  employer  himself  be  bound  to  do  the  act,  453,  454 
what  acts  are  done  in  the  course  of  employment,  455-458 

cases  of  negligent  driving,  455-457 
master  is  responsible  for  servant's  mistake  of  fact,  458 
but   not  for  his  mistake  of  law,  458,  459 
nor  where  servant  injures  a  fellow  servant,  459-461 
nor  where  he  is  compelled  to  employ  a  particular  person,  461 

such  as  a  pilot,  461 
nor  where  the  master  is  a  public  officer,  462 

but   this   rule  does  not  apply  to  trustees  or  corporations 
appointed    for    the    gratuitous  performance   of    public 
works,  462 
servant  is  liable  for  acts  of  misfeasance,  463,  46  ^ 
but  not  for  acts  of  nonfeasance,  463,  465 
Mesne  profits, 

action  of  trespass  for,  498,  n.  {q) 
Mla-joinder.     See  Husband  and  Wife,  Joinder,  Non-joinder,  Partners 
of  plaintiffs  effect  of, — 

in  contract,  502,  503,  509 

leads  only  to  increased  costs,  502,  503,  509 
in  tort, — 

leadii  only  to  increased  costs,  507,  509 
of  defendants,  effect  of. — 

in  contract.  12,  506.  509 

is  fatal  unless  amended,  506,  509 


to  marginal  paging.]  INDEX.  549 

Mis-joinder — Continued. 

in  tort.  12,  50S,  509 
leads  only  to  increased  costs,  508    509 
Money  had  and  received.     See  Contract. 
what  this  action  is,  14 
may  be  brought  by  a  person  whose  goods  have  been  wrongfully  sold,  20 
when  it  lies  against  trustee,  42 

executor,  42 
grounds  on  which  it  lies,  gl-ioi 
is  sometimes  independent  of  contract,  9I,  93 
sometimes  dependent  on  it,  92,  94 
what  is  consideration  for,  94,  et  seq. 
when  it  lies  against  agent,  257-259 
Money  paid, 

what  this  action  is,  15,  16 

Negligence.      See  Master  and  Servant. 

actions   for,  against  attorneys,  surgeons,  &c.,  for  want  of  skill  may  be 
brought  either  on  the  contract  or  for  tort,  16 
also  against  carriers  and  bailees,  16 
no  action  for,  lies  where  plaintiff  has   been  guilty  of  contributory  negli- 
gence, 75,  412,  413,  415 
includes  actions  for  tort  and  breach  of  contract,  368-380 
who  liable  for  negligent  driving,  441,  442,  456-458 
Necessaries.     See  Husband  and  Wife,  Infant,  Parent  and  Child. 
Non-joinder.     See  Husband  and  Wife,  Joinder,  Misjoinder,  Partners. 
of  plaintiffs,  effect  of,  11 

in  contract,  11,  502,  509 

is  fatal  if  not  amended.  502,  509 
in  tort,  II,  507.  509 

only  gives  rise  to  a  plea  of  abatement,  507.  509 
of  defendants,  effect  of,  11,  12 
in  contract,  il,  506,  509 

only  gives  rise  to  a  plea  of  abatement,  230,  506,  509 
in  tort,  12.  508,  509 

is  no  error,  508,  509 
Nuisance, 

if  public  is  indictable,  61 

therefore   no  action    lies,  except  at  the   suit  of  one  who    has  sus- 
tained damage  from  it  over  what  is  common  to  others,  61 
what  is  such  particular  damage,  61-64 
every  person  who  creates  or  continues  a  nuisance  is  liable,  422 
where  landlord  responsible  fornuisance  on  tenant's  land,  432,  423 
where  vendor  of  land,  423, 424 
where  tenant  or  occupier.  424 

Outlaw, 

can  not  come  into  court  except  to  reverse  his  outl.iwry.  3 

therefore  he  can  not  sue,  3 

but  he  is  liable  to  he  sued,  4 
Owner.     5^<f  Animals,  Damace,  Land,  Tort,  Trover. 

Parent  and  child, 

fath'-r  is  not  liable  for  goods  supplic<l  to  infant  son,  3()l 


550  INDEX.  {References  an 

Parent  and  Child — CoutititieJ. 

though  sliglit  evidence  of  his  having  authorized  the  supply  is  sufficient, 

292 
parent  may  sue  for  injury  to  his  child,  327 
but  only  if  he  has  lost  his  services  thereby,  327 
may  sue  for  seduction  of  his  daughter,  327-329 
very  slight  evidence  of  loss  of  service  is  sufficient,  327-329 
Pju-tners.     J)*"*- Joinder.  UNiNCOKroKATED  Company. 

a  firm,  as  distinct  from  its  members,  has  no  legal  existence,  148 
therefore  a  firm  or  unincorporated  company  must  sue  and  be  sued  in  the 
names  of  its  individual  members,  148,  266 
however  numerous  they  may  be,  149 
every  partner  qua  his  fellow  partners  is  both  principal  and  agent,  149, 

153,  266  et  seq. 
all  partners  in  the   firm  at  the  time  a  contract  is  made  should  join  in 

suing  for  the  breach  of  it,  151 
therefore   a   retired   partner  must   always  join   in  suing  on   a   contract 

made  while  he  was  a  member  of  the  firm,  153 
a  dormant  partner  always  tnay,  but  never  need,  join  in  an  action,  151 
a  nominal  partner  sometimes  must,  and  sometimes  need  not  join,  151 

he  must  join  if  the  contract   be  made  expressly  with  him  and  the 

real  partners,  151 
semble  he  need  not,  if  it  be  clearly  shown  he  is  merely  nominal, 

152 
if  it  be  doubtful  whether  he  must  join  or  not,  it  is  safer  for  him 
to  do  so,  152 
a  partner  can  not  join  in  suing  on  a  contract  made  before  he  joined  the 
firm,   152 
unless  the  debtor  has  either  expressly  or  impliedly  contracted  to 
pay  the  new  firm,  152,  153 
a  debt  due  from  one  partner  can  not  be  set  off  against  debts  due  to  the 

firm,  154 
nor  can  debts  from  the  firm,  against  debts  due  to  one  partner,  154 

exceptions  to  this  principle,  154,  155 
one  partner  can   not   sue  anoiher  on   any  matter  involving  partnership 

accounts,  155 
this  rule  does  not  apply  to  actions  on  matters  unconnected  with  part- 
nership business,  157 
nor  to  persons  who  are  not  actually  partners,  157 
thus  actions  may  be  brought  on  agreements  for  partnership,  157 
parties  may  bring  actions  on  separate  agreements  or  covenants,  157 
or  for  breach  of  ccjntract  to  furnish  capital,  158 
or  for  a  balance  struck  after  a  statement  of  account,  158 
or  for  matters  only  connected  with   partnership   business,    though  the 

wrongful  act  of  a  partner,  159 
on  the  bankruptcy  of  a  firm,  actions  must  be  brought   by  the  trustee  of 

the  bankrupt.  159 
on  the  bankruptcy  of  one   or   more   partners,  by  the   solvent  partners, 

together  with  the  trustee  of  the  bankrupt  partners,  159 
and  they  may  sometimes  bring  an  action  where  the  firm  could  not,  160 
the  bankruptcy  of  one  partner  dissolves  the  firm,  and  mnkes  the  trustee 
tenant  in  common  with   the   solvent   partners   of  all   the  partnership 
property,  160 


U>mar^nalpasins:\  INDEX.  55 » 

Partners — Continued.  -r  .v 

under  certain  conditions  the  trustee  may  use  their  names,  if  they  are 

unwilling  to  sue,  i6o 
or  they  may  use  his,  on  indemnifying  hnn.  l6l  ,.       ■  ■      . 

in    actions  against,  dormant   or   nominal   partners  need   not  be  joined, 

233 
though  it  is  best  to  join  them.  233  ^       ,  •  ,      ,  cK«..ih 

all  per,ons  who  were  partners  at  the  time  of  making  a  contract  should 

be  joined  as  defendants  in  an  action  for  the  breach  of  it.  266 
a  dormant  partner  always  may  be  joined.  268 

but  never  need,  263,  269 
a  nominal  partner  always  may  be  joined.  269   270 

by  any  one  to  whom  he  has  appeared  as  partner.  270 
a  partner  can  not  be  sued  on  contracts  made  before  he  joined  the  firm. 

a  r'etir'ed'partner  may  be  sued  on  contracts  made  while  he  belonged  to 

onl^'partTe;  may  be  sued  alone  in  cases  where  an  agent  might  be  sued 

instead  of  a  principal,  271 
set-off  in  actions  against  partners.  271.  272 
in  bankruptcy  of,  no  action  lies  against  trustee,  272 
on  bankrJJ^t 'y  of  one  or  more  partners,  the  solvent  partner  or  partners 

should  be  sued,  272 
on  the  death  of  partners,  survivors  must  be  sued.  274.  275 
all  must  sue  jointly  for  a  wrong  done  to  the  firm.  384 
thorwho  wire  partners  at  the  time  the  wrong  was  done  must  sue  for 

how  far  one  partner  can  sue   another  for  tort   385.  3S6 

who  should  sue  for  tort  on  the  bankruptcy  of  the  fi-"-- 3S6-  f  ^ 

all  or  any  of  the  partners  may  be  sued  for  a  wrong  committed  by  the 

except' where  partners  are  sued  as  co-owners  of  land.  433,  439. 

469 
when  they  should  join  in  ejectment.  492.  493 

^"^"^  owner  of  vessel  is  not  liable  for  damage  caused  by.  461 
PoUce  Officers.      See  Constables. 

rH:::;S°aJ'Age»;:''irM;sTB.  .^n  ........  .•.k..-«s,  ««,.■... 

"principal  mu».  su.  on  contract  made  with  hint  tl.rous'.  -"  »SC">-  'JO 
if  made  by  his  authority.  130 
or  subsequently  ratified,  130-133 
the  agent  can  not  sue,  133 

""*"' where  he  is  contracted  with  by  deed  in  his  own  name.  134 
where  he  is  name.l  as  a  party  to  a  bill  of  exchange    134 
:l;ercthcrightt„sueon  the  contract   is  by   its  terms  expressly 

restricted  to  him.  135  ,.        ,,   ,. 

where  the  contract  is  made  with  the  aRent  himself.  13'' 
where  he  is  the  ostensible  principal.  138 
Tr  Xre  he  has  made  a  .imple  .on.i.nct  in  h.   o«n   name  for  an 

undisclosed  principal.  I  *8 


TION. 


552  INDEX.  IR.ferrnces  arp 

Print>*»*l  and  Agent — Contiuuid. 

where  lie  has  made  a  contract  in  the  subject-matter  of  which  he 

has  a  special  interest  i)r  property,  139 
where  he  has  paid  away  his  principal's  money  under  circumstances 
which  give  him  a  riglit  to  recover  it  back.  140 
Jie  agent's  right  to  sue  is  subject  to  the  principal's  right  of  interposition. 
140 
this  doctrine  only  applies  where  the  agent  is  a  mere  representa- 
tive, 141 
if  an   undisclosed  principal   sue,   the  defendant  may  set   up  any 
defense  which  would  be  available  against  the  agent,  141 
when  an  agent  sues  in  his  own   name,  defendant   may   avail  himself  of 
defenses  good  against  the  agent,  and  also  of  those  good  against  the 
principal,  142 
how  this  doctrine  applies  to  set-off,  142,  143 
if  a  person  really  contracts  for  himself,  but  apparently  for  an  unnamed 

principp.l,  he  can  sue  as  principal,  143,  144 
otherwise,  if  he  gives  the  name  of  another  person,  144-147 
every  partner   qua  his  fellow-partners  is  both  principal  and  agent,   149, 

153,  266  et  seq. 
principal  must  be  sued  on  contracts  made  by  him  through  an  agent,  23^ 
principal  is  bound  by  all  acts  of  agent  within  the  scope  of  his  authority 

239 
whether  such  authority  be  express  or  implied,  240 
and  whether  the  act  of  agent  be  authorized  at  the  time,  or  subsequentlj 

ratified,  239,  247 
what  is  e-xpress  autliority,  240 
what  implied,  240-242 
incidents  of  implied  authority,  242-247 

when  principal  bound,  after  revocation  of  agent's  authority,  242 
agent's  authority  can  not  be  limited  qua  third  persons,  by  private  orders 
unknown  to  them,  242 
otherwise,  if  third  parties  know  the  agent  has  private  instructions, 
243 
authority  of  some  kind  is  necessary,  247 
as  no  one  can  make  himself  agent    against    the    will    of  his  principal, 

247-249 
liability  of  members  of  clubs,  249-251 

of  volunteers  for  goods  supplied  to  their  corps,  231,  251 
agent,  acting  as  such  can  not  be  sued,  251 
except, 

where  he  contracts  by  deed  in  his  own  name,  252 

where  he  draws  or  accepts  a  bill  in  his  own  name,  252 

■"here  credit  is  given  exclusively  to  him,  253 

where  he  contracts  for  persons  incapable  of  contracting,  254 

where  he  is  treated  as  an  actual  party  to  ilic  ^.ontract,  254 

where  he  contracts  (not  under  seal)  for    an   undisclosed  principal, 

256 
where   money  has   been  paid  to  him  under  mistake,  or  obtained 

by  tort,  257 
where  he  has  signed  contracts  for  a  "  limited"   company  without 
using  the  word  limited,  259 
where  agent  onlv  must  be  sued,  252-254 


to  marginal  paging:]  INDEX.  553 

Principal  and  Agent — Continued. 

where  either  principal  or  agent  may  be  sued.  254-262 

limitations  to  this  right  of  choice,  260-262 
agent  who  contracts  without  authority  can  not  be  sued  on  the  contract, 
262 
but  he  will  be  liable  in  damages  for  having  represented  that  he  had 
authority,  263,  264 
except  in  cases  where  his  authority  has  expired  without  his 
knowledge,  264,  265 
if  agent   accepts  bills  without  authority  for  himself  and  others  he  u 

liable  personally  on  the  bill,  264 
principal  can  never  sue  for  mere  injury  to  agent,  383 
nor  agent  for  mere  injury  to  principal,  3S3 
principal  is  liable  for  torts  committed  by  his  command,  441 
or  afterwards  ratified  by  him,  444,  445 

is  liable  for  torts  of  agent  in  the  usual  course  of  his  employment,  443 
when  liable  for  fraud  of  agent,  447-449 
how  far  employers  of  contractors  are  liable,  450-454 
agent  is  liable  to  third  persons  for  acts  of  misfeasance,  463 

but  not  for  nonfeasance,  463,  465 
can  principal  and  agent  be  jointly  sued,  465,  466 

action  may   be  brought  against   principal   or   immediate   actor  in  th« 
wrong  but  not  against  an  intermediate  agent,  466 
except  in  the  case  of  master  of  ships,  467 
Privileged  communications.     See  Ltbel,  Slander. 
Privity  of  contract.     See  Choss,  in  Action,  Contract,  Right. 
what  it  is,  10 

must  exist  to  support  an  action  on  a  contract,  10 
how  it  applies  to  actions  for  tort  founded  on  contract,  16  et  seq.,  370- 

380 
effect  of  want  of,  iS,  37,  38 
no  one  can  sue  for  the  breach  of  a  contract  who  is  not  a  party  to  it,  78 

though  he  may  suffer  damage  from  the  breach,  79,  84  et  seq. 
early  decisions  to  the  contrary  are  now  overruled,  84 
this  rule  applies  to  torts  founded  on  contract,  i8.  370  et  seq. 
exceptions  to  the  general  rule,  90  et  seq. 

actions  by  a  person  appoinlcd  by  statute  to  sue  for  others,  90 
actions  which  may  be  brought  cither  by  principal  or  agent,  90,  9I 
some  actions  for  money  had  and  received,  91  et  seq. 
Protected  persons.     .SVi*  Constakles.,  Judges,  Magistrates. 

some  persons  are  to  a  certain  extent  protected  from  actions.  427-430 

Queen.     St-e  Sovereign. 
Queen  consort, 

can  sue  and  be  sued  as  a  feme  sole,  I 

Railway  companies, 

can  not  be  sued  by  master  for  d.image  done  to  servant  while  passenger 

18 
how  far  actions  against,  for  injuring  passengers,  are  on  contraot  or  for 

tort,  18,  19 
Ratification.     See  Infant.  Principal  and  Agent. 
of  a  contract  has  a  retrospective-  effect,  131 


554  INDEX.  \Refentua  aft 

Ratification—  Ccntinudi. 

may  take  place  after  action  brought,  131 

can  only  take  place  where  the  contract  was  professedly  made  on  behali 

of  plaintiti',  132 
a  contract  can  not  be  ratified  by  a  person  not  in  existence  when  it  wa» 

made,  132 
it  must  be  ratified  wholly,  if  at  all,  133 
the  ratification  must  not  put  the  defendant  in  a  worse  position  than  ho 

was  at  the  time,  133 
these  rules  apply  to  defendants  as  well  as  to  plaintiffs,  247 
by  adult,  of  contract  made  when  an  infant,  292,  293 
of  torts,  effect  of,  444,  445 
Release, 

any  one  of  co-plaintiffs  may  release  an  action,  108 
nor  can  this  release  be  set  aside  except  in  cases  of  fraud,  108-IIO 
Remoteness.     See  Damage,  Tort. 

no  one  is  liable  for  the  remote  and  indirect  result  of  his  act,  410 
unless  there  has  been  no  intermediate  cause,  411,  414 
Rent.     See  LANDLORD  and  Tenant. 
Replevin, 

action  for,  25 
Reversioner.     See  Heir,  Landlord  and  Tenant,  Tort. 

may  sue  for  permanent  injury  to  the  land,  340  et  seq. 
Right.      See  Chose  in  Action,   Equitable  Interest,  Privity  of  Cx>» 
tract. 
no  action  can  be  brought  except  for  the  infringement  of,  28 
of  landowner,  31 

to  support  from  adjacent  land,  33 
to  water,  34 
the  right  for  which  an  action  can  be  brought  must  be  a  common  Sum 

one,  41 
and  not  an  equitable  one,  43 

every  infringement  of  a  legal  right  is  actionable,  50 
whether  accompanied  by  damage  or  not,  50 
of  action  not  assignable,  66 

no  person  can  be  sued  who  has  not  infringed  upon   the  right  in  (espect 
of  which  the  action  is  brought,  73 
application  of  this  rule  to  actions  of  contract,  73 

of  tort,  75 
every  person  can  be  sued  who  infringes  upon  the  right  of  another,  76 

Sale  of  goods, 

where  the  property  passes,  348-350 

Security  for  costs.     See  Partners. 

may  be  claimed  from  real  plaintiff  by  nominal  plaintiff,  72 

may  be  claimed  by  defendant  from  nominal  plaintiff  when  insolvent,  1% 

may  be  obtained  by  a  co-plaintiff,  whose  name  is  used  without  permis- 

sion,  108 
may  be  obtained  by  a  husband,  when  his  wife  sues  as  executrix  in  her 
own  name  and  in  his  without  his  authority,  171 

Seduction.     See  Master  and  Servant,  Parent  and  Child. 

Set-oflf.     See  Equitable  Plea,  Partners,  Principal  and  Agent,  TrustM, 
in  case  of  trustee,  46,  47 


to  marginal  paging^  IJSUrLJi.,  555 

8et-oflf — Con  tin  ued. 

in  case  of  principal  and  agent,  142,  143 

a  debt  duerfrora  one  partner  can  not  be  set  off  against  debts  due  to  the 

finn,  154 
nor  debts  from  the  firm  against  debts  due  to  one  partner,  154 
exceptions  to  this  principle,  154,  155 

when  debts  from  a  company  can    be    set   off    in  an  action  for    calls, 
169 
when  not,  170 
in  actions  by  husband  and  wife  for  debts  claimed  by  both,  debts  due 
from  wife  before  marriage  may  be  set  off,  181-185 
but  not  debts  due  from  him  only,  1S5 
where  husband  sues  in  his  own  name  only,  debts  due  from  him  can  be 
set  off,  185 
but  not  debts  contracted  by  his  wife  before  marriage,  185 
in  bankruptcy,  debts  can  be  set  off  as  in  an  ordinary  action,  100 
mutual  credits  can  be  set  off,  200 
all  debts  and   demands  which  are  provable  against  the 

bankrupt's  estate,  201 
notice  of  an  act  of  bankruptcy  terminates  the  right  of  set 

off,  201 
demands  in  respect  of  which  set  off  is  claimed,  must  be 
strictly  in  the  same  right,  201 
in  actions  by  executors  or  administrators, 

for  debts  due  to  deceased,  defendant  can  set  off  debts 
due  from  deceased,  but  not  debts  due  from  execu- 
tors, 218 
for  debts  due  to  them  as  executors,  defendant    can  not 

set  off  debts  due  from  deceased.  2i5 
in  their  own  name  defendant  can  not  set  off  debts  due 
to  him  from  deceased,  but  can  set  off  debts  due  from 
plaintiff,  218 
in  actions  against  partners, 

debts  due  to  one  partner  can  not  be  set  off  against 

debts  due  from  the  firm,  271 
nor  debts  due   to    the   firm  against  debts   due  from 
one  partner,  272 
except  in  some  cases  of  survivorship,  272 
in  action  against  husband  and  wife.  2gq 

executors  or  administrators,  319 
Shei-ifif, 

liability  of,  433-435 
when  liable  for  acts  of  bailiff,  435 
Ship.     See  Pilot. 

BImple  contract.     S,-e  Contract,  Considf.ration.  Privity  op  Contract. 
is  3  contract  not  under  seal  or  of  record.  79 
may  be  either  written  or  parol,  79 

person  to  sue  for  breach  of,  is  the  person  with  whom  the  contract  must 
be  considered  to  be  made.  80 
that  is  the  person  from  whom  the  consideration  for  the  promise  moTe*. 

81 
except, 

actions  by  persons  empowered  to  sue  by  statute,  90 


55^  INDEX.  \Referentes  sn 

Simple  Contract — Continued. 

actions  brouglit  by  an  agent,  90,  gi 
some  actions  for  money  had  and  received,  gi-xbt 
is  not  made  by  a  mere  promise,  there  must  be  a  consideration,  81 
all  persons  with  whom  it  is  made  must  join  in  an  action  for  the  breach 

of,  104 
how  to  determine  with  whom  a  contract  is  made,  105-108 
can  not  be  framed  so  as  to  give  the  promisees  the  right  to  sue  upo*  »* 

both  jointly  and  separately,  in 
corporations  can  not  sue  on,  164 

exceptions  to  this  rule,  165-169 
person  to  sue  for  breach  of,  is  person  who  promises  225 
Slander, 

is  not  actionable  if  true,  30,  31 

norif  privileged,  31 

nor  (sometimes)  without  special  damage,  54 
the  original  utterer  and  the  repeater  are  each  liable,  415-417 
the  utterer  is  not  liable  for  a  spontaneous  and  unauthorised    repetition, 
ai6,  417 
Sovereign.     See  Foreign  Sovereign. 

can  sue,  i  ' 

but  not  be  sued,  5 

can  sue  in  his  own  name  on  a  chose  in  action  if  assigned  to  him,  68 
Statute  of  Limitations.    See  Limitations,  Statute  of. 
Surgeons, 

actions   against,  for  want  of  skill   may   be   either  on   contract  or  for 
tort,  16 
Survivorship, 

the  right  of  action  on  a  contract,  made    with  several  persons  jointly, 
passes  to  the  survivors,  and  on  the  death  of  the  last,  to  his  represen- 
tatives, 128 
except  covenants  with  tenants  in  common,  128 
in  case  of  husband  and  wife,  180,  184 
on    the  death  of  a  co-executor,  or  co-administrator,  his  rights  of  action 

pass  to  the  survivors,  221 
the  liability  to  an  action  on  a  contract,  made  by  several  persons  jointly, 
passes  to  the  survivors,  and  on  the  death  of  the  last,  to  his  represen- 
tatives, 237,  238 
how  it  affects  the  doctrine  of  set-off  in  the  case  of  partners,  272 
on  the  death  of  partners,  the  survivors,  and  ultimately  the  last  survivor, 

must  be  sued,  274 
semble,  this  rule  applies  to  unincorporated  co.npanies  not  empowered 

to  sue  by  public  officer,  275 
on  death  of  one  of  the  parties  jointly  wronged  the  right  of  action  passes 

to  the  survivors,  382 
and  on  the  death  of  the  last  (if  the  right  of  action  survives)  to  his  rep- 
resentatives, 382 
the  joint  liability  of  several  wrongdoers  passes  on  the  death  of  each  to 
the  survivors,  439 
Tort.       See   Actions,    Felony,    Foreign    Law,    Lex    Loci,    Trespass, 
Trover. 
action  for,  g 
any  person  mimed,  directly  or  indirectly,  by,  may  sue,  10 


to  marginal  paging.-\  INDEX.  557 

Tort — Continued. 

some   actions  for,  may  be  brought  for  a  breach  of  duty  arising  from  a 

contract,  x6,  437 
semble,  such  actions  are  really  actions  on  contract,  20 
effect  of  treating  tort  as  a  breach  of  contract,  20 

of  treating  breach  of  contract  as  tort,  21,  437 
treatincr  breach  of  contract  as  turt  can  not  make  an  infant,  or  married 

woman,  liable,  21,  474 
committed  abroad  may  be  sued  on  here,  55-57. 

if  a   tort  according  to  English  law,  and   the  law  of  the  place 

where  committed,  55~6x 
action  for,  does  not  lie  when  the  wrong  done  amounts  to  a  felony,  64 

where  this  rule  does  not  apply.  64,  65,  406. 
no  one  can  sue  for  an  injury  not  an  injury  to  himself,  325 
the  exceptions  to  this  rule  are  apparent,  not  real,  325 
thus  master  does  not  sue  for  injury  to  servant,  but  for  loss  of  service,  326 
so  with  parent  and  child,  327 

therefore  servant  and  child  may  sue  also,  326,  327 
action  for  seduction  is  on  the  same  principle,  327-329 
husband  may  sue  for  damages  caused  to  him  by  injury  inflicted  on  his 

wife,  390-392 
landlord  and   tenant  may  each  sue  for  damages  done  to  their  respective 

interests  in  the  property,  329 
any  person  who  sustains  an  injury  can  sue  for  it,  330 

whether  injury  to  person.  330 

character,  331 
or  property,  331,  332 
the  person  in  possession  of  land  can  sue  for  interference  with  his  pos 

session,  333 
occupation  of  servant  is  possession  of  master,  335 
trespass  can  not  be  brought  wthout  possession,  335 
mere  occupation  is  not  possession,  336,  337 
mere  right  to  possession  will  not  support  trespass,  337.  333 
trespass  must  be  brought  by  tenant  in  possession,  and  not  by  landlord 

339 
but  reversioner  must  sue  for  permanent  injury  to  land,  210 

what  constitutes  permanent  injury,  340-344. 

injury  to  personal  property,  344,  345 

any  one  may  sue  for  interference  with  the  possession  of  goods  who  (as 

against  the  defendant)  has  a  right  to  such  possession,  345-347.  353 
and  no  one  else,  345,  359  ^     .   . 

a  person  entitled  to  a  reversionary  interest  in  goods  may  sue  for  injury 

to  his  interest,  367 
actions  for  tort  founded  on  contract,  370 

how   far  they  can    be   brought   by  strangers  to  tlie  con- 
tract, 370,  380 
persons  who    have  a    separate   interest,  and    sustain    sep-xrate    damage. 

must  sue  separately,  80,  381 
persons  who   have    separate  interest,  but  sustain    joint  damage,  may. 

sue  either  jointly  or  separately.  380,  381 
persons  who  have  a  joint   interest   must  sue  jointly  for  an  injury  to  it 

380-382 
right  of  .iction  f.r  a  tort  can  not  be  assigned,  382 


558  INDEX,  [References  art 

Tort — ContintifJ. 

on  death  of  one  of  the  parties  jointly  wronged,  right  of  action  passes  to 

survivors,  3S2 
no  one  is  liable  for  an  injury  of  wlijch  he  is  not  the  cause,  410 
nor  for  the  romote  and  indirect  results  of  his  acts,  410 
nor  if  the  damage  is  partly  occasioned  by  the  negligence  of  the 
person  injured,  75,  412,  415  • 

any  person  who  causes  an  injury  to  another  is  liable  to  be  sued  by  him,  413 
a  person  is  liable  f<)r  the  mode  in  which  he  uses  his  land  or  his  goods, 

421-425 
how  fai  owner  liable  for  damage  done  by  animals,  425-427 
persons  in  certain  positions  protected,  427-430 

one,  any,  or  all,  of  several  joint  wrong-doers  may  be  sued,  430-435 
there  is  no  contribution  between  wrong-doers,  431 
what  torts  can  be  joint,  432-435 
false  imprisonment,  433 
error  in  foundation  of  process,  433,  434 
irregularity  in  form,  434 
error  in  execution,  434,  435 
what  torts  can  not  be  joint,  436 
effect  of  judgment  recovered,  436,  437 
the  liability  to  be  sued  for  tort  is  not  assignable,  439 
except  assignment  by  death,  439 
each  wrong-doer's  separate  liability  (if  it  survives  at  all)  passes  at  his 

death  to  his  personal  representatives,  439 
the  joint  liability  of  several  wrong-doers  passes  on  the  death  of  each  to 

the  survivors,  439 
all  persons  concerned  in  a  wrong  are  liable  to  be  charged  as  principals, 

463.  464 
an  action  may  be  brought  against   the  principal  Or  immediate  actor  in 
the  wrong,  but  not  against  an  intermediate  agent,  466 
Transitory  Action.     See  Actions,  Jurisdiction. 

Trespass.     See    Felony,    False  Imprisonment    Landlord  and  Tenant, 
Tort. 
act  on  for,  24 

lie*  for  entry  upon  land  in  the  occupation  of  another,  333 
ca'    not  be  brought  by  person  without  possession,  335 
therefore  must  be  brought  by  tenant  in  possession  and  not  by  landlord, 

339 
lies  also  for  mesne  profits,  498,  n.  (^) 

Trover, 

lies  for  goods  wrongfully  sold,  20 
action  on,  24 

is  actionable  irrespective  of  any  damage,  54 
right  to  bring,  depends  on  right  to  possession,  346,  347,  352,  353 
who  is  owner  for  this  purpose,  347-352 
maybe  brought  by  bailees  and  carriers,  352,  353 
mere  possession  is  sufficient  against  a  wrong-doer,  354 
even  that  of  a  finder,  354,  355 
wrong-doer  can  not  set  up  jus  tertii,  356 

■Bless  plaintiff  relies  not  on  actual  possession,  but  on  his  right  to  pot- 
session,  357 
mny  sometimes  be  brought  by  either  bailee  or  bailor,  358,  359 


ie  marginal  paging.']  INDEX.  559 

Trover — Continued. 

can  be  brought  by  no  one  who  has  not  a  right  to  immediate  possessioD 

359 
how  this  right  may  be  acquired  or  restored,  361-366 
what  acts  amount  to  conversion,  419 
each  person  who  converts  is  liable  to  be  sued,  420 
Trustee,  . 

can  not  be  sued  at  law  for  the  trust  money,  41 

unless  he  has  acknowledged  he  holds  it  for  the  cestui  que  tmst, 
42 
when  debt  to  or  from  can  be  set  off,  46 
Trustee  in  Bankruptcy.     See  Bankruptcy. 

occupies  the  same  position  the  assignee  formerly  did,  189,  n.  (a) 

Unincorporated  Company.     See  Partners. 

mnst  sue  and  be  sued  in  the  names  of  its  individual  members,  148  et 

seq.,  266  et  seq. 
however  numerous  they  may  be,  149 
except 

where  an  unincorporated  company  is  empowered  by  statute  to 

sue  in  the  name  of  its  public  officer,  150 
or  where  it  is  being  wound  up,  15 1 
one  member  can  not  sue  another  on  any  matter  relating  to  the  accounts 

of  the  company,  155 
where  a  public  officer  can  sue,  or  be  sued  by,  members  of  the  company, 

156,  157 
effect  of  winding  up,  161 

of  bankruptcy  of  one  or  more  of  its  members,  l6r 
when  insolvent,  are  generally  wound  up,  273 
on  petition  for  winding  up  actions  against  can  be  stayed,  274 
effect  of  registering,  274 
a  company  empowered  to  sue  and  be  sued  in  the  name  of  its  public 

officer  does  not  lose  this  power  by  stopping  payment,  274 
how  affected  by  the  doctrine  of  survivorship,  275 

one,  any  or  all  members  may  be  sued  for  a  wrong  committed  by  the 
company,  468 

Volunteers.     See  Principal  and  Agent. 

when  liable  for  goods  supplied  to  tiie  corps,  231,  251 
War.     See  Alien  Enemy. 

in  time  of,  alien  enemy  can  not  sue,  3 

but  he  can  sue  on  the  restoration  of  peace,  3 


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